What Casac has been doing during those ‘nine wasted years’
The Council for the Advancement of the SA Constitution protects the constitution sometimes from the very people mandated to uphold it
It is perhaps no coincidence that the Council for the Advancement of the SA Constitution’s (Casac) 10 years of existence has largely coincided with the “nine wasted years” of the Zuma administration. The necessity for a progressive civil society organisation to defend and advance the foundations of our constitutional democracy was foremost in the minds of Casac’s pioneers over dinner at a restaurant in Adderley Street, Cape Town, in 2009 — the late Prof Kader Asmal, Geoff Budlender, Mamphela Ramphele and Richard Calland — as they anticipated the attacks on the independence of the judiciary and other bulwarks of the constitution.
As Casac was launched at Liliesleaf Farm in Rivonia on September 17 2010, its inaugural chair, Sipho Pityana, said: “In the changing circumstances of our times, a conservative assault on the constitution from the very powerful in our society is raising its ugly head”.
Pityana later explained why Casac was established: “The constitution was a product not just of political compromise, but also of a profound political struggle based on the principles of the Freedom Charter — a struggle and a set of principles whose values are in danger of being submerged by the rush to personal enrichment of a new, venal conservative faction that straddles the right wing of the ANC alliance and a broader political establishment that has formed over the past decade.”
Casac has focused on issues of public accountability, the rule of law, and the strengthening of institutions of governance through a strategy embracing research, advocacy, lobbying and litigation. One of its first research reports — Combating Corruption: Towards a Comprehensive Societal Response — was published in March 2011, just days before the landmark Glenister II judgment from the Constitutional Court. The report resonated with the judgment, arguing that the constitution and our international law obligations required an independent anti-corruption agency.
Almost 10 years later and it seems the government has finally been persuaded of this. The recent announcement of a “fusion centre” of nine law enforcement agencies is a step towards that; but, as proposed in our report, it must go beyond resurrecting a Scorpions-like agency and imbue a dedicated agency with additional mandates of prevention and public education.
The recent Covid-19 corruption scandals have again exposed the weaknesses in the procurement system that a comprehensive prevention strategy can address. The government’s soon-to-be-released national anti-corruption strategy also speaks to a “whole of society” response to tackling corruption, an approach articulated in our 2011 report.
The public protector’s state of capture report in 2016 gave the president 30 days in which to appoint a judicial commission of inquiry. Casac thereafter wrote to then president Jacob Zuma urging him to appoint such a commission, notwithstanding his intended review of the public protector’s report, as it would be in the public interest to do so. We were subsequently named as one of the respondents in Zuma’s review application, which we actively opposed.
While Zuma’s application failed and the commission was appointed by Zuma in January 2018, we continue to oppose his attempts to appeal the personal costs order granted against him in this matter, most recently in the Supreme Court of Appeal last month.
An effective prosecuting authority is required to ensure accountability and respect for the rule of law. Yet this has been one of the institutions that has been systemically weakened from the Thabo Mbeki era
Also in November 2016, Casac launched an application in the Constitutional Court to compel Zuma to carry out his constitutional function to assent to or refer back to parliament the Financial Centre Intelligence Amendment Bill. The bill sought, inter alia, to strengthen the regulatory framework to combat money laundering and bring SA into line with standards set by the Financial Action Task Force.
The president did, indeed, then refer the bill back to the National Assembly and it was duly passed with minor amendments in February 2017, ensuring that SA remained compliant with its international obligations.
An effective prosecuting authority is required to ensure accountability and respect for the rule of law. Yet this has been one of the institutions that has been systemically weakened from the Thabo Mbeki era when Vusi Pikoli was suspended as national director of public prosecutions (NDPP).
The appointment of his successor, Menzi Simelane, was declared irrational and unconstitutional by the apex court, leading to the appointment of Nomgcobo Jiba as acting NDPP in December 2011. When Zuma appeared to be in no hurry to appoint a permanent head, leaving Jiba in situ for 18 months, Casac approached the Constitutional Court in July 2013 for an order directing that such an appointment be made.
Realising that he was on shaky legal ground, Zuma confirmed to the court that he would make an appointment and then, rather hurriedly, appointed Mxolisi Nxasana in September 2013. Nxasana did not enjoy a happy tenure at the National Prosecuting Authority (NPA), finding obstacles placed in the way of doing his job without fear, favour or prejudice by Jiba and others. He was enticed to “resign” in May 2015 after Zuma aborted an enquiry into his fitness to hold office.
Casac, as well as Corruption Watch, approached the courts regarding the legality of Nxasana’s resignation. In addition, Casac successfully challenged sections of the NPA Act to curtail the president’s powers of suspension of NPA heads.
All of this was done with the aim of protecting the independence of the NDPP and the integrity of the prosecution authority. The NPA is now in a process of renewal and rehabilitation, which will hopefully see it execute its constitutional mandate robustly and without political interference.
Casac has successfully reviewed the public protector’s report on the Vrede Dairy Farm scandal, in which Busisiwe Mkhwebane found only minor technical irregularities in the dispersal of more than R200m of public funds to the Guptas and their associates. Her conduct was so reckless and irrational that the court made a partial personal costs order against Mkhwebane, an order that was upheld by the Constitutional Court last month.
The integrity of Chapter Nine institutions is critical to the realisation of rights contained in the bill of rights, and we have sought to ensure that they execute their mandates effectively.
We are currently challenging the authority of the Ingonyama Trust to levy rents and circumscribe tenure on occupiers of land under the custody of the trust. Joined by the Rural Women’s Movement and several individual applicants, we seek to protect and strengthen the customary law rights of holders of “permission to occupy” rights.
These are among the interventions Casac has made during its first 10 years. Writing in the Daily Maverick after the launch, Stephen Grootes said: “Casac doesn’t have huge support from the masses, or a massive organisation behind it. But it does have brains, experience and wisdom in the people within it. They are experts at conducting peaceful legal revolutions. Watch them closely.” We hope we have lived up to that billing.
• Naidoo is Casac executive secretary.
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