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Document #1235981
Freedom House (Author)
South Africa celebrated its first decade of universal democracy in 2004, an achievement punctuated by the holding in April of the country’s third free and fair general election. That election demonstrated the continuing political dominance of the African National Congress (ANC), popularly considered to be the major force behind the transition to nonracial democratic rule and the party of South Africa’s most revered public figure, former President Nelson Mandela. The ANC won just under 70 percent of the national vote, securing a governing majority in parliament and the reelection of President Thabo Mbeki, who succeeded Mandela in 1999.
In 1910, the Union of South Africa—including the British colonies of the Cape and Natal and the two Afrikaner republics, Transvaal and Orange Free State—was created as a self-governing dominion of the British Empire. All political and most civil rights were limited to South Africa’s minority white population; the majority black population, as well as the colored (mixed-race) and Asian (primarily Indian) minorities, were effectively disenfranchised. In 1948, the Afrikaner-dominated National Party came to power on a platform of comprehensive, institutionalized racial separation, or “apartheid.” Partly as a result, South Africa declared formal independence in 1961 and withdrew from the British Commonwealth. The National Party governed South Africa under the apartheid system—a new constitution promulgated in 1984 granted limited political power only to coloreds and Asians—until the first nonracial general elections in 1994. Four years earlier, mounting domestic and international pressure prompted then-President F.W. de Klerk to legalize the previously banned African National Congress and Pan-African Congress and release ANC leader Nelson Mandela from prison. The intervening years saw almost all apartheid-related legislation abolished and an interim, democratic constitution negotiated and enacted.
The April 1994 elections—judged free and fair by international observers despite significant political violence—resulted in a landslide victory for the ANC and the election of Nelson Mandela as president. As required by the interim constitution, a national unity government was formed, including the ANC, the NP, and the Zulu-nationalist Inkatha Freedom Party (IFP). Negotiations within a Constitutional Assembly produced a permanent constitution that was signed into law by Mandela in December 1996. In 1999, general elections saw the ANC claim almost two-thirds of the national vote; Thabo Mbeki, Mandela’s successor as head of the ANC, won the presidency.
The ANC’s rise to power has been accompanied by increasing tensions within the party’s governing alliance—including the South African Communist Party (SACP) and the Congress of South African Trade Unions (COSATU)—as well as with independent media, opposition parties, traditional leaders, and the white minority. Vociferous debates surround the government’s approach to poverty, economic inequality, land reform and housing, basic service delivery, corruption, the ongoing crisis in Zimbabwe, and HIV/AIDS. The last of these issues is particularly crucial: Some 6 million South Africans are infected with HIV/AIDS, making South Africa home to the world’s largest such population. Mbeki’s government, arguing that the HIV virus does not necessarily cause AIDS, has resisted making antiretroviral drugs available to the public health system. In 2003, the government yielded to substantial international and domestic pressure to provide universal antiretroviral drug treatment, a process that began in 2004. Shortly thereafter, however, Mbeki reappointed controversial health minister Manto Tshanalala-Msimang, who has publicly recommended traditional remedies such as garlic, lemon, olive oil, and beetroot as superior to antiretrovirals in combating HIV/AIDS.
South Africa has emerged from decades of minority racialist rule as a parliamentary democracy under the 1996 Constitution of the Republic of South Africa. National authority is shared by the executive and parliament and checked by an independent judiciary; executive and legislative powers also exist on the provincial and local levels. Extensive political rights are guaranteed by the Constitution, which provides for universal adult suffrage[1], a national common voters’ roll, regular elections contested by multiple parties and determined by a proportionally representative system, and the establishment of an Independent Electoral Commission (IEC) and an Electoral Court. In addition, a constitutionally incorporated Bill of Rights assures South African citizens of the rights to form and campaign for a political party and stand for public office.
National general elections held on April 14, 2004 demonstrated the practical fortitude of the South African electoral system, as well as its overwhelming domination by the ruling ANC. Despite concerns about voter apathy, 76.7 percent of almost 21 million registered voters turned out to cast ballots on behalf of 39 political parties. The contest saw the ANC garner 69.7 percent of the vote, the party’s largest majority since coming to power, leading to the unanimous reelection of ANC party leader Thabo Mbeki as president and head of state by the National Assembly (NA). The ANC also secured outright majorities in seven of the nine South African provincial legislatures. The liberal (and primarily white-based) Democratic Alliance (DA) won 12.4 percent of the vote (50 seats in the NA), while the IFP won almost 7 percent (28 seats). Several small opposition parties captured the remaining votes.[2]
The polling was declared free and fair and reflective of the people’s will by more than 218 observers from 14 international observer groups and some 4,000 domestic observers representing 101 civil society organizations.[3] Overall, the election was conducted in a peaceful, efficient, and orderly manner; however, minor problems were reported, including the use of insufficiently distinct national and provincial ballots and ballot boxes, inconsistency in the layout of polling stations, and the lack of monitors at some polling stations. Citing a list of 46 incidents of election irregularities it reported to the electoral commission—including an inaccurate voters’ roll and minor instances of intimidation—the IFP challenged the election results for KwaZulu-Natal at the Electoral Court[4]; the challenge was later withdrawn.
During the campaign period preceding the elections, the IEC successfully conducted two voter registration drives and a voter education campaign, all of which included substantial participation by political parties, civil society, and the media. Widespread concerns about political violence during the preelection campaign period—focused primarily on potential clashes between ANC and IFP supporters in KwaZulu-Natal—proved mostly unfounded. Nevertheless, several people were killed as a result of campaign violence, and rallies led by Mbeki and DA leader Tony Leon were both marred by acts of violence and intimidation. Allegations of pro-ANC bias at the state-owned South African Broadcasting Corporation (SABC) gathered steam after it broadcast live Mbeki’s speech launching the ANC’s reelection campaign; the SABC denied similar coverage to opposition parties.
These opposition parties, while stringent critics of the government and the ANC, have not been able to pose a significant challenge to the ruling party since 1994. The lackluster performance in the 2004 elections of a preelection alliance between the two major (but ideologically distinct) opposition parties—the DA and the IFP—spoke to the lack of a realistic political alternative in South Africa. The New National Party (NNP), descendant of the National Party that created and ruled the South African apartheid state, has seen its share of the national vote shrink by 90 percent in 10 years; allied with the ANC in the April 2004 elections, the NNP announced in August it was officially merging with the ANC and disbanded in April 2005. The strength of opposition politics is further diluted—and the dominant status of the ANC further entrenched—by the country’s proportionally representative national electoral system and wide allowances for legislative floor crossing.[5]
While public funding of political parties through the Represented Political Parties’ Fund is governed by the IEC, private contributions to political parties are completely unregulated. This system has elicited criticism from both elected officials and civil society as a major source of political corruption. In 2003, the Institute for Democracy in South Africa (Idasa) embarked on litigation to require all 13 parties represented in the NA to reveal the identities, amounts given, and dates of donations of all private donors since 1994. Although the Cape High Court noted that Idasa had “made out a compelling case,” that court dismissed Idasa’s application in April 2005[6]; during the trial, the ANC (and other parties) expressed cautious support for new legislation to regulate private donations.
South Africa’s constitution mandates a robust system of checks and balances among the executive, legislative, and judicial branches of government. Executive power is held by a legislatively elected president, who serves as head of state; the president’s appointed cabinet consists of the deputy president and ministers and deputy ministers for 27 ministries. The national legislature, including the NA and the 90-seat National Council of Provinces (NCOP),[7] has significant oversight and approval powers vis-à-vis the executive. Every executive or legislative act, in turn, is subject to review and scrutiny by the judiciary, headed by the Constitutional Court and the Supreme Court of Appeals.
In practice, the ANC’s overwhelming control of the executive and the legislature (at both national and provincial levels) has undermined the efficacy of South Africa’s accountability mechanisms. Parliamentary committees charged with overseeing executive ministries are often led by ANC loyalists and have been accused of approving executive decisions without sufficient debate; NA deputy speaker and ANC member Gwen Mahlangu has publicly derided her fellow legislators for sounding like imbongis (praise singers) for the government by speaking from texts prepared by executive departments for whose oversight members of parliament are responsible.[8] The ongoing corruption scandal over the 1999–2000 Strategic Defense Procurement Package (also known as the “arms deal,” see Anticorruption and Transparency) is the most notable failure of parliament’s oversight function and at least partially the result of political pressure. The judiciary has demonstrated significant independence in hearing constitutional challenges to executive and legislative acts and in prosecuting abuses of power; nevertheless, political influence, a lack of resources, and the lack of an effective oversight mechanism for judicial conduct and ethics compromise this independence.
The Public Service Act (PSA) provides for a civil service in which posts must be filled on the basis of “equality and other democratic values and principles enshrined in the Constitution.”[9] However, merit and open competition are often subordinated to political affiliation and nepotism, as well as to both explicit and implicit quotas based on race, gender, and disability[10] The professionalism of the civil service varies widely by province, with the administration of the Eastern Cape considered the most problematic.
Thousands of civic groups and nongovernmental organizations operate freely throughout South Africa, including a vibrant and politically active trade union movement led by COSATU. A recent study found that most of these civil society organizations deal with democracy-related issues, transparency and governance, land reform, and housing.[11] Civil society organizations regularly testify before and submit presentations to legislative committees regarding pending legislation. While their close relationships with the ANC (stemming from the anti-apartheid movement) have discouraged many civil society organizations from pursuing public advocacy campaigns aimed at affecting legislation, this dynamic is changing. For example, the Treatment Action Campaign (TAC) has successfully pressured the government, through both the use and the threat of legal action, to reverse executive policy and begin distributing free antiretroviral drugs to HIV/AIDS patients in public hospitals in 2004. In 2005, COSATU—a governing ally of the ANC—organized the Western Province Coalition for Jobs and Against Poverty, an alliance of more than 70 religious and civic groups aimed at challenging the Mbeki administration’s liberal economic development policies.[12]
Freedom of expression and the press, protected in the constitution, is generally respected. Nevertheless, several apartheid-era laws remain in effect that permit authorities to restrict the publication of information about the police, national defense forces, prisons, and mental institutions and to compel journalists to reveal sources. In November 2004, the parliament passed the controversial Law on Antiterrorism, which had been vigorously opposed by press freedom advocacy organizations and other elements of civil society. While this opposition forced the government to shelve the legislation earlier in the year, it reintroduced the law after its resounding victory in the April 2004 general election.
A number of private newspapers and magazines are sharply critical of the government; in particular, the Mail & Guardian and the Sunday Times have aggressively pursued reports about government corruption and other abuses of power. Elements within the ANC—including President Mbeki—have become increasingly sensitive to media criticism and investigations of corruption. Journalists who report on these issues have been accused of racism and have reportedly been blacklisted by the ruling party, leading to significant self-censorship. In 2005, the Mail & Guardian was issued a gag order and made to turn over documents related to its coverage of the ANC-related “Oilgate” corruption scandal. The SABC controls a majority of radio outlets, the medium by which most South Africans receive the news; the state broadcaster also dominates the television market. While editorially independent from the government, the SABC has come under increasing fire for displaying a pro-ANC bias and for practicing self-censorship; such criticism increased after former government spokesman Snuki Zikalala was appointed head of news. In addition, independent community radio stations feel pressure from ANC officials to produce positive coverage at the risk of licensing and advertising sanctions.[13] While journalists are rarely arrested or detained by state authorities, they continue to be subject to pressure—including instances of threats and harassment—from both state and non-state actors. South Africans enjoy unhindered access to the internet, and there are no restrictions on setting up internet-based media.
The constitution and the Bill of Rights provide South Africans with a comprehensive set of civil liberties that are generally enjoyed in practice. Non-derogable rights included in the Bill of Rights are: equality, human dignity, life, freedom from torture and inhuman and cruel treatment, freedom from slavery and servitude, freedom from child abuse, and a series of procedural rights for arrested, detained, and accused persons.
The South Africa Police Service (SAPS) is under the civilian control of the Department of Safety and Security, and is primarily responsible for maintaining internal security and law and order. South Africans may report alleged rights violations by the SAPS to the Independent Complaints Directorate (ICD); between April 2004 and March 2005, the ICD received 5,790 complaints.[14] Citing resource constraints, the ICD fully investigated 63 percent of death cases (by police action or in police custody), 41 percent of criminal cases, and 44 percent of misconduct cases. Police remain badly underpaid, and corruption in the SAPS is a significant problem. Public confidence in the police forces to effectively combat South Africa’s high rates of violent and petty crime is very low; partly as a result, private security forces outnumber police by a 5-to-1 ratio.[15]
Despite constitutional prohibitions, there were reports of torture and the use of excessive force by SAPS members during interrogation, arrest, and detention. In 2004, three activists of the Landless People’s Movement were assaulted and subjected to torture after being arrested at an election-day demonstration. ICD investigators recommended charges of assault and intimidation be brought against a police superintendent; the trial began in April 2005.
Prison conditions in South Africa often do not meet domestic or international standards. According to the Department of Correctional Services, the country’s 243 prisons suffer from an overcrowding rate of almost 136 percent,[16] a problem that will most likely be exacerbated by the April 2005 extension of mandatory sentencing laws passed by parliament.[17] There were reports of prisoners being physically and sexually abused by both fellow prisoners and prison employees, and corruption among prison guards is a problem. Over 40 percent of inmates are infected with HIV, and health services, while improving, are inadequate. Excessive pretrial detention and negligent conditions for pretrial detainees were cited by a UN Working Group in 2005 as major shortcomings of the South African penal system; while most prisoners wait an average of three months before trial, some must wait up to two years.
Gender equity is provided for in the constitution, which prohibits both state and private discrimination on the basis of “gender, sex, pregnancy [or] marital status”[18] and imbues the state with a positive duty to prevent discrimination via national legislation—a duty that has been confirmed by the Constitutional Court. While the constitution allows the option and practice of customary law, it—along with the Recognition of Customary Marriages Act of 1998—does not allow such law to supercede the constitutional rights assured to women as South African citizens. Nevertheless, women suffer de facto discrimination with regard to marriage, divorce, inheritance, and proprietary rights.[19] Women are also subject to sexual harassment and wage discrimination in the workplace and are not well represented in top management positions. Women hold 131 seats in the NA and head 12 (of 28) ministries and 4 provinces; in June 2005, Mbeki appointed Minerals and Energy Minister Phumzile Mlambo-Ngcuka as deputy president.
Domestic violence and rape, both criminal offenses, are serious problems: South Africa has one of the world’s highest rates of sexual abuse.[20] The country’s high rate of HIV infection makes incidents of rape particularly worrisome; a traditional belief that HIV can be cured by sexual intercourse with a female virgin has contributed to a rash of child rapes. Despite the government’s operation of women’s shelters and sexual offense courts, reporting and investigation of these crimes are hampered by a lack of resources and societal attitudes.
As of October 2005, no law specifically prohibits trafficking in women (or any person), and South Africa serves as a destination, source, and transit point for trafficked women. However, the government prosecuted traffickers—mostly in sexual offense courts—under a number of existing laws and cooperated with NGOs engaged in the issue.
As with gender discrimination, the constitution prohibits discrimination based on “race…ethnic or social origin, colour, sexual orientation,[21] age, disability…and birth.”[22] State entities such as the South African Human Rights Commission (SAHRC) and the Office of the Public Prosecutor (OPP) are empowered to investigate and, with respect to the OPP, prosecute violations of antidiscrimination laws. Citing the legacy of the apartheid system, a significant amount of legislation has been passed mandating affirmative action for previously disadvantaged groups (defined as “Africans,” “Coloureds,” and “Asians”) in both public and private employment as well as education. However, racial imbalances in the workforce persist: The 2003 Department of Labor Employment Equity Report notes the “higher proportions of Indian and White employees in higher-skilled occupations compared to African and Coloured employees that dominate the lower-skilled occupations.”[23] The government has also focused policy (with very mixed results) on reforming racial inequities in housing, health care, and land ownership.
The indigenous Khoikhoi and Khomani San peoples suffer from social and legal discrimination. In a March 2005 report, the SAHRC found ample evidence of police abuse of members of the Khomani San community, including police culpability in the widely publicized killing of community leader Optel Rooi. The report also faulted the government for failing to provide the San with basic services after agreeing to a land-restitution program with the community in 1999.[24] In October 2003, the Constitutional Court ruled in favor of the Khoikhoi Richtersveld community in its land-restitution battle with the state mining company Alexkor.[25]
Increased illegal immigration, particularly from Zimbabwe and Mozambique, has led to a rise in xenophobia and occasional attacks perpetrated by both police and non-state actors. Enacted in June 2005, the Immigration Amendment Act is intended to promote “a human rights-based culture of [immigration] enforcement” by establishing a Counter-xenophobia Directorate, tightening requirements for asylum seekers, and improving benefits for foreign workers.[26]
Freedom of religion is constitutionally guaranteed and actively protected by the government in practice. By law, there is no official state religion, though the majority of South Africans are Christians. The state is not involved in the appointment of religious leaders or the internal workings of religious organizations; in fact, the government does not require religious groups to be licensed or registered.[27]
Freedom of association and peaceful assembly is secured by the Bill of Rights, and South Africa has a vibrant civil society (see Accountability and Public Voice). Citizens are easily able to form civic organizations and obtain the required certificate of registration; tax-exempt status is awarded to civic organizations registered as nonprofit organizations or companies. South Africans are free to form, join, and participate in independent trade unions. Unions have been active since the early 20th century and played a critical role in the anti-apartheid movement; as a result, the country has a politically engaged and influential trade union movement. COSATU—which claims over 2 million affiliate members—is a member of a tri-partite governing alliance with the ANC and the SACP. In September 2004, hundreds of thousands of public sector workers went on strike in the largest industrial action in the last decade. A number of strikes involving workers in the mining and textile sectors were peacefully conducted and resolved in the period under review.
The state generally protects the right of civil society groups to organize, mobilize, and advocate for peaceful purposes; however, security services have allegedly monitored the activities of the Landless People’s Movement, TAC, and civil society organizations involved in a series of recent protests over poor service delivery.[28] In addition, police have used force to break up several of these protests, as well as other demonstrations over disease and housing issues. In September 2004, a teenager participating in a service protest was shot dead by a police officer, prompting an ICD investigation. In July 2005, some 40 people protesting the slow rollout of antiretroviral drugs in the Eastern Cape were injured after police used rubber bullets and tear gas to disperse the demonstration; two months later, police fired rubber bullets at protesting residents of the typhoid-stricken town of Delmas in Mpumalanga province.
The independence of the South African judiciary is guaranteed by the constitution, and the courts have operated with substantial autonomy in the post-apartheid era. The chief justice and deputy chief justice of the Constitutional Court (CC) are appointed by the president after consultation with the Judicial Service Commission and the leaders of parties represented in the NA.. Constitutionally, the “racial and gender composition of South Africa”[29] must be considered in the selection of judges. Judges may be removed from office only by impeachment by the National Assembly. Despite the political dominance of the ANC, the upper courts have resisted political interference, a fact confirmed by the high-profile trial of then–Deputy President Jacob Zuma’s financial advisor and ANC stalwart Schabir Shaik in 2005. Shaik was found guilty by the Durban high court of corruption and fraud charges related to the arms-deal scandal and sentenced to 15 years in prison. Zuma himself has been charged with corruption and appeared in court in October 2005 (see Anticorruption and Transparency).[30] The lower (magistrate) courts are reported to be more susceptible to political influences.
Criminal defendants are presumed innocent until proven guilty, and the constitution provides for a litany of procedural rights—including the right to a fair, public trial conducted “without unreasonable delay,” the right of appeal to a higher court, and the right to independent legal counsel (accused persons unable to afford such counsel have the right to a state-funded legal practitioner “if substantial injustice would otherwise result”).[31] In practice, a lack of capacity—particularly staff and resource shortages--undermine South Africans’ rights to a timely trial and legal counsel. As a result, poor and geographically isolated South Africans do not enjoy wide access to the justice system and often rely on customary courts. Capacity issues have also produced a significant backlog of cases, resulting in excessive pretrial detention and prison overcrowding (see Civil Liberties). While corruption in the upper courts is not a major concern, the magistrates’ courts have proven more susceptible. In addition, there have been reports of violent intimidation directed at judges and magistrates.[32]
The National Prosecuting Authority (NPA), South Africa’s centralized prosecuting authority, is ensured independence by the constitution and the NPA Act of 1998. The presidentially appointed National Director of Public Prosecutions (NDPP) is the head of the NPA, reports to parliament, and is accountable to the Minister of Justice. The arms deal criminal investigations—conducted by the Directorate of Special Operations (DSO, or the “Scorpions”), a unit of the NPA focused on tackling organized crime and corruption—underscored the NPA’s independence. The scandal was marked by a substantial amount of political pressure directed at the NPA, particularly NDPP Bulelani Mgcuka and the DSO. In 2003, former Transport Minister Mac Maharaj (also under investigation for corruption) and former ANC intelligence operative Mo Shaik (Schabir’s brother) accused Mgcuka of being a spy for the apartheid government, compelling Mbeki to appoint a special commission (the so-called Hefer Commission) to investigate the charges. Despite being cleared of these charges, Mgucka resigned in July 2004; he later stated that a politically independent NDPP was “wishful thinking” and that the position in fact “straddles the line between the Executive and the judicial.”[33]
The South African National Defense Force (SANDF) is under effective civilian control; under the constitution, the president is commander-in-chief of the force, which is overseen by the Department of Defence (headed by a civilian defense minister) and subject to significant parliamentary oversight—most notably by the Joint Standing Committee on Defence and the Portfolio Committee on Defence.[34] Tasked mostly with maintaining external security, the SANDF also has some domestic obligations. Military personnel generally respect human rights, and soldiers are exposed to human rights training programs; however, abuses have been reported. In August 2004, five soldiers accused of assaulting and robbing illegal immigrants from Zimbabwe were arrested and tried after a nine-month investigation into the crimes.[35]
The protection of property rights is a subject of much controversy in post-apartheid South Africa, the consequence of tensions between maintaining the rule of law, promoting economic growth, and remedying the country’s gross inequities in land ownership. Some 80 percent of farmland is owned by white South Africans, who make up 14 percent of the population.[36] As a result, thousands of black and colored farm workers suffer from insecure tenure rights, and illegal squatting on white-owned farms is a serious problem. In addition, a majority of the country’s business assets remain in the hands of white-owned enterprises. The Mbeki administration has attempted to transform this reality by instituting a Black Economic Empowerment (BEE) program that aims to bring about, mostly through aggressive preferences in employment and government tenders, “significant increases in the numbers of black people that manage, own and control the country’s economy, as well as significant decreases in income inequalities.”[37]
Section 25 of the 1996 constitution states that “no one may be deprived of property except in terms of law of general application,” which allows for property to be expropriated for a public purpose or in the public interest, subject to negotiated or court-mandated compensation according to market principles. Notably, the “public interest” includes “the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and property is not limited to land.” The constitution also provides that South Africans affected by past racially discriminatory laws are entitled to restitution, redress (including redistribution), or secured land tenure rights.[38] These provisions have guided the government’s oft-criticized “willing buyer, willing seller” land reform program.
Despite being supported by a series of legislative acts and much political rhetoric, land reform has proceeded slowly. During Mandela’s presidency (1994–1999), the process was hindered by bureaucratic obstacles, competing interests, complex land tenure legislation, and evictions of farm workers—as well as an overarching effort to pursue racial reconciliation following the end of apartheid. As a result, by June 2000, less than 2 percent of the country’s land had been transferred.[39] The Mbeki administration has made its mark on all three tenets—restitution, redistribution, and securing tenure rights—of the land reform program. The government has sped up the settlement of land restitution claims by shifting the process from judicial to administrative control and has opted to target land redistribution not at the rural poor but at promoting black commercial farmers.[40] Regarding land tenure rights, the government has supported the controversial Communal Land Rights Bill, which grants tribal chiefs control over the allotment of most unsecured land in the former homelands.
South African land reform efforts have been impacted by violence both within and outside its borders. The widespread state-backed seizures of white-owned farms in neighboring Zimbabwe that began in 2000 were initially backed by the ANC; however, the government quickly assured domestic and international business communities that such seizures would not occur in South Africa. In addition, attacks on white farm owners by black farm workers—connected to a wave of informal land invasions—increased significantly after 2000. In 2001, the government established the Committee of Inquiry into Farm Attacks, which investigated attacks on both farm owners and farm workers; the committee concluded that the attacks could be interpreted as motivated by both criminal and political agendas.[41]
Most of the pressure on the government to accelerate its land reform program has come from civil society organizations such as the Landless People’s Movement (LPM) and the National Land Committee (NLC). Civic opposition to the Communal Lands Rights Bill was vigorous, and in late July 2005, delegates to a state-sponsored national land summit advised the government to revise the “willing buyer, willing seller” land redistribution program in favor a quicker, less market-based approach.[42] New Deputy President Phumzile Mlambo-Ngcuka, who attended the summit and supported the move away from market-friendly land reform, caused a major stir when she later stated that South Africa should “learn lessons” from and employ “the skills” of Zimbabwe in pursuing more rapid land reform. Conversely, farmers’ groups led by the South African Agricultural Union (Agri-SA) have cautioned against too rapid reform.
Despite these pressures, the state generally protects citizens from arbitrary deprivation of their property. However, in a landmark development in October 2005, the government issued the country’s first expropriation order, forcing a white farmer to sell his land for redistribution after negotiations on a compensation price failed. The order was made possible by a January 2004 amendment to the 1994 Restitution of Land Rights Act, allowing the state to expropriate land through administrative rather than judicial means if the land fits the conditions laid out in the constitution (see above).[43] In addition, the government announced in January 2005 its intention to remove the country’s informal settlements on the outskirts of cities and replace them with low-cost housing; about 9.5 million people live in these settlements. In July 2005, human rights groups protested a string of forced removals of residents from officially condemned buildings in Johannesburg, where the central business district is undergoing major renovations.[44]
South Africa has a wide-ranging anticorruption framework, with several agencies and special bodies claiming a legal mandate to prevent, detect, and combat corruption among public officials. However, enforcement of these laws is a major problem.
Chapter 9 of the constitution established three so-called Chapter 9 Institutions that deal with corruption: the Office of the Auditor-General of South Africa (AGSA) the Public Protector, and the Independent Electoral Commission. The Office of the AGSA, South Africa’s supreme audit institution, is responsible for auditing and reporting to parliament on the accounts, financial statements, and financial management of any agency receiving public monies. These reports are accessible to the public free of charge. While the AGSA’s independence is constitutionally guaranteed, the extent of this independence was called into question by the auditor-general’s conduct vis-à-vis the arms deal (see below). In addition, incomplete reporting by public agencies, particularly at the provincial and municipal levels, hampers the institution’s efforts, as does the lack of a positive obligation on the part of parliament to act on AGSA resolutions .[45]
The public protector, or national ombudsman, is empowered to investigate a litany of improprieties in public administration; citizens may report a matter directly to the public protector.[46] In addition, a public protector is appointed in every province. Ostensibly independent, the current public protector, Leonard Mushwana, a former ANC member of parliament, has been accused of inhibiting investigations of senior ANC members. A lack of capacity, insufficient funding, and the fact that the public protector’s recommendations are often ignored by parliament also dilute the ombudsman’s effectiveness.[47] As with the AGSA, the public can access the public protector’s reports promptly and free of charge.
Besides the Chapter 9 institutions, several other agencies and legislative instruments contribute to South Africa’s anticorruption efforts—with varying degrees of success. Within the executive and legislative branches of government, the separation of public office from personal interests is superficially achieved by the Executive Members Ethics Act, the Code of Conduct for Assembly and Permanent Council Members, and the deliberations of the Joint Committee on Ethics and Members Interests, respectively. While these mechanisms mandate that relevant officials disclose private financial assets and interests, the extent of disclosures is inconsistent among national, provincial, and local governments, and none have credible oversight or enforcement mechanisms. Moreover, none have adequate post-employment restrictions.[48] Notably, while both executive and legislative officials’ financial disclosures are legally available to the public, those of executive officials—particularly the president—are reported to be substantially more difficult to access.[49] The South African media have vigorously investigated allegations of conflicts of interest and nondisclosure among members of the executive and the legislature. After the DSO announced it was investigating more than 20 MPs for illegally inflating their travel expenses to pay for luxury items, newspapers such as the Sunday Times, the Cape Times, and This Day played a major role in further investigating and exposing the corrupt MPs; however, while some 136 MPs were investigated, only five MPs were convicted of corruption in March 2005 (another 21 MPs were charged with travel-related fraud in June of that year). Despite this vigor, the media’s ability to investigate political corruption is limited by a general lack of investigative reporting resources.[50]
The Public Service Commission (PSC) oversees the Department of Public Service & Administration (DPSA) and is “responsible for monitoring and evaluating the public sector,” including cases of public corruption.[51] Senior public officials and members of the PSC are required to submit disclosure forms; however, adherence to these regulations is not only weak but has been worsening over time,[52] and sanctions for failing to submit the requisite forms are virtually nonexistent. The civil service also has no restrictions on post–public service employment. Petty corruption is a significant problem in the civil service.[53]
By law, the Protected Disclosures Act (PDA) protects whistleblowers from various forms of retribution and recrimination; in practice, whistleblowers are rarely protected from occupational detriment and other negative consequences. Moreover, internal mechanisms for acting on reports of corruption are unclear, ineffective, and inconsistent across provinces and municipalities. Efforts are being made to improve performance in this area: The PSC and the DPSA have recently established a national hotline for civil servants to report instances of corruption within their ranks, and the South African Law Commission is undertaking a review of the efficacy of the PDA. In 2002, the executive cabinet approved the Public Sector National Anti-Corruption Strategy, intended to provide “a holistic and integrated approach to fighting corruption.”[54] A DPSA Anti-Corruption Unit was created to implement this strategy; its successful execution is still to be determined.[55]
Chapter 10 of the constitution states that “transparency [in public administration] must be fostered by providing the public with timely, accessible and accurate information.” In addition, the Bill of Rights grants “everyone” the right of access to “any information held by the state” (with exceptions such as national security) and mandates that national legislation be enacted to this effect. This legislation, the 2000 Promotion of Access to Information Act, guarantees citizens’ access to government information. However, enforcement of the act suffers from a tedious application process and slow responses to requests: A 2004 study by the Open Society Institute found that South Africa—particularly the executive branch—was the least responsive to information requests among a group of five transitional democracies.[56] It is estimated that 60-70 percent of access to information requests are met with “mute refusal” through purposeful delay or inaction.[57] The executive dominates the budget-making process. While the legislature must approve the budget, effective legislative oversight is greatly hampered by a lack of either formal amendment powers or preapproval of executive contracts. The independence and efficacy of the Standing Committee on Public Accounts (SCOPA), parliament’s primary public funds oversight body, has been substantially weakened by its role in the arms deal scandal (see below) and a more general unwillingness to challenge executive actions.[58] The 1999 Public Finance Management Act (PFMA) and the 2003 Municipal Finance Management Act provide for a substantial degree of transparency in the use of national, provincial, and local government funds. Both acts mandate regular expenditure reports from departments and public enterprises to treasuries, the annual submission of audited financial statements to parliament, and the submission by all departments of an anticorruption strategy to the national treasury.[59] In addition, the AGSA must monitor government spending and adherence to relevant regulations. Critics of the PFMA’s efficacy, however, point to the AGSA’s questionable independence and inadequate capacity, as well as “the absence of a legal requirement for the publication of contingent liabilities and extra-budgetary activities.”[60] Accurate and timely information on regular budgets and expenditures is easily available to the public.
In general, procurement processes are transparent and require competitive bidding and limited sole sourcing. In December 2003, the treasury introduced the Supply Chain Management Framework, devolving procurement responsibilities to accounting officers in government departments (excepting strategic procurements such as arms). The framework is also designed to meet the requirements of the PFMA by “ensuring more comprehensive oversight over the entire procurement and disposal of assets process.”[61] A major legal exception to competitive bidding is the Black Economic Empowerment program (see Rule of Law). The BEE has come under increasing scrutiny from the media and civic groups for enriching only small groups of politically connected blacks.
In April 2004, after extensive consultation with civic organizations and almost two years of parliamentary debate, President Mbeki signed into law the Prevention and Combating of Corruption Activities Act. This act—intended to remedy many of the legal ambiguities and enforcement issues of the previous Corruption Act of 1992—establishes more workable definitions of illegal corruption and extortion, reinstates the common law criminality of bribery, extends the presumption of prima facie evidence to facilitate prosecution, and expands the scope of the law to include all public officials and private citizens.[62] The act mandates very tough sanctions, including a maximum penalty of life imprisonment.[63] Significantly, the act places a positive duty on senior officials to report instances of corruption to the authorities, removing the whistle-blowing onus from junior officials. In addition, it established a Register of Tender Defaulters that excludes persons and companies convicted of corruption from government business for set periods of time; according to Transparency International, “South Africa appears to be the first country to establish such comprehensive legislation at a national level.”[64] Nevertheless, up until October 2005, only a few prosecutions under the Act had been carried out.
To a large extent, the act can be viewed as the state’s reaction to the corruption scandals surrounding the country’s controversial 1999 US$4.8 billion Strategic Defense Procurement Package (the arms deal). Democratic South Africa’s largest-ever procurement package, the arms deal included five contracts between the executive and several international arms companies. The AGSA investigated the deal and produced a report summarizing its findings in September 2000; while the report “identified areas of concern,” it found no evidence of corruption.[65] However, the AGSA allegedly bypassed SCOPA when submitting its report to the executive. SCOPA’s own report called for an investigation into the arms deal, prompting an ANC-driven reshuffling of the committee’s members and public criticism of the committee by prominent cabinet members—including then–Deputy President Jacob Zuma. In 2001, SCOPA created a Joint Investigations Team (JIT)—comprising the AGSA, the NPA, and the PP—to investigate the arms deal. The exclusion of the Special Investigations Unit (SIU), the only state agency dedicated to combating corruption, from the JIT was a major source of controversy; Zuma had personally requested the SIU’s exclusion.[66] Although the JIT’s November 2001 report identified several improprieties in the transaction and made several recommendations aimed at strengthening parliament’s oversight powers with respect to executive procurements, it found no evidence of “improper or unlawful conduct by the government.”[67]
Nevertheless, the arms deal’s unprecedented expense, the involvement of several senior ANC figures in the securing of contracts and sub-contracts, and the very public crisis undergone by SCOPA (including the resignation of chairman Gavin Woods in protest of executive interference), sparked the attention of civic watchdogs and the media. In addition, the Scorpions carried out criminal investigations of numerous public officials involved in the deal. Most notable were the investigations (and eventual prosecution) of Schabir Shaik and former Deputy President Jacob Zuma (see Rule of Law). Two weeks after Shaik’s June 2005 conviction on charges of paying Zuma a series of bribes, Mbeki sacked Zuma as deputy president; the following week, Zuma himself was charged with corruption by the NPA. The Zuma investigation, including a much-publicized raid on his home, led to condemnations of the Scorpions[68] and Mbeki by the large segment of the governing alliance loyal to Zuma. In November 2005, Zuma appeared before a Durban magistrate’s court; his corruption trial will begin in 2006.
[1] Citizens aged 18 or over, including prisoners. The Electoral Act was amended in 2004 to allow for government officials, students, and vacationers living abroad (but not those working abroad) to vote in South African elections, including the 2004 general election.
[2] EISA Election Observer Mission Report: South Africa National and Provincial Elections 12–14 April 2004 (Johannesburg: Electoral Institute of Southern Africa [EISA], EOR 14, 2004), 23, http://www.eisa.org.za/PDF/sa04eomr.pdf. Notable among the electoral results for other opposition parties is the mere 1.7 percent of the vote (7 seats in the National Assembly) won by the New National Party, the descendant of the National Party that ruled South Africa during the apartheid era.
[3] Ibid., 27.
[4] “Challenge to polls in the offing” (Nairobi: UN Integrated Regional Information Networks [IRIN], 19 April 2004), http://www.irinnews.org/report.asp?ReportID=40646.
[5] Interview with Dr. Khabele Matlosa and Grant Masterson of the Electoral Institute of Southern Africa (EISA)
[6] Democracy and Party Political Funding: Pursuing the Public’s Right to Know (Cape Town: Institute for Democracy in South Africa [Idasa], May 2005), http://www.idasa.org.za/index.asp?page=outputs.asp%3FTID%3D1%26OTID%3D18.
[7] The NCOP consists of 10 members from each province, 6 “permanent delegates” appointed by the provincial legislature to five-year terms and 4 “special delegates” appointed by the legislature in consultation with the premier on a temporary basis.
[8] H. van Vuuren, National Integrity Systems Country Study Report: South Africa 2005 (Berlin: Transparency International [TI], March 2005), 36, http://ww1.transparency.org/activities/nat_integ_systems/dnld/draft_s_af....
[9] Public Service Act, No. 103 of 1994, Chapter IV (11), http://www.psc.gov.za/docs/legislation/public_service_act/publicservicea....
[10] Ibid.
[11] The State of Civil Society in South Africa (Johannesburg: Idasa/Co-operative for Research and Education, December 2001), http://www.idasa.org.za/index.asp?page=outputs.asp%3FTID%3D4%26OTID%3D2.
[12] Nick Miles, “South Africa’s poor to tackle ANC,” BBC News, 22 August 2005, http://news.bbc.co.uk/1/hi/world/africa/4173284.stm.
[13] “FXI expresses concerns over state of media freedom in the world as well as in South Africa” (Toronto: International Freedom of Expression Exchange [IFEX], Action Alert, 3 May 2004), http://www.ifex.org/en/content/view/full/58640/.
[14] Annual Report of the Independent Complaints Directorate 2004/2005 (Pretoria: Ministry of Safety and Security, 2004), http://www.icd.gov.za/reports/2004/annualreport05.pdf. This represents a 2% decrease from the 2003–04 financial year.
[15] Interview with Boyane Tshehla of the Institute for Security Studies
[16] “Basic Information” (Pretoria: Department of Correctional Services, 2005), http://www.dcs.gov.za/WebStatistics/, “Incarceration Levels”. In an attempt to decrease such overcrowding, the DCS released more than 7,000 prisoners in June 2005 under a special clemency program for nonviolent and petty criminals.
[17] J. Sloth-Nielsen and L.Ehlers, A Pyrrhic victory? Mandatory and minimum sentences in South Africa (Pretoria: Institute for Security Studies [ISS], Occasional Paper 111, July 2005), http://www.iss.co.za/pubs/papers/111/Paper111.htm.
[18] Constitution of the Republic of South Africa 1996, Chapter II (9).
[19] An Overview of Women’s Rights in African Customary Law (Johannesburg: Legal Resources Centre, Women’s Rights Project, 2004), http://www.lrc.org.za/Publications/AcademicPapers.asp.
[20] “Campaign to create awareness on sexual offences law,” IRIN News, 6 August 2004, http://www.irinnews.org/report.asp?ReportID=42560.
[21] South Africa’s is one of the world’s most liberal legal environments for homosexuals. In February 2004, the Supreme Court of Appeals ruled that the country’s Marriage Act should include same-sex marriage. The Home Affairs department appealed to the Constitutional Court to overturn the ruling in May 2005; that body’s decision is expected in December 2005. In 2002, the Constitutional Court ruled that homosexual couples should be allowed to adopt children.
[22] Constitution of the Republic of South Africa 1996, Chapter II (9).
[23] Commission for Employment Equity Annual Report 2002-2003 (Pretoria: Department of Labor, 2003), http://www.labour.gov.za/download/9960/Useful%20documents%20EEA%20-%20Em....
[24] Report on the Inquiry into Human Rights Violations in the Khomani San Community (Johannesburg: South African Human Rights Commission, November 2004).
[25] “SA herders win back diamond land,” BBC News, 14 October 2003, http://news.bbc.co.uk/2/hi/africa/3192000.stm.
[26] “Govt plans to counter xenophobia,” IRIN News, 30 June 2005, http://www.irinnews.org/report.asp?ReportID=47906.
[27] While the government allows public schools to include general religious education in age-appropriate curricula, it is not required; preaching the tenets of a specific faith (religious instruction) is not permitted in public schools: International Religious Freedom Report 2004: South Africa (Washington, D.C.: U.S. Department of State, September 2004), http://www.state.gov/g/drl/rls/irf/2004/35383.htm.
[28] Global Integrity Report: South Africa (Washington, D.C.: The Center for Public Integrity [CPI], 2003), http://www.publicintegrity.org/docs/ga/2004South_Africa.pdf.
[29] Constitution of the Republic of South Africa 1996, Chapter XIII (177).
[30] Former ANC chief whip Tony Yenegeni was also charged with fraud and corruption in the arms-deal scandal; he was granted a plea bargain on the lesser charge of fraud in 2003.
[31] Constitution of the Republic of South Africa 1996, Chapter II (35).
[32] Edwin Lombard, “Criminals target judiciary,” Sunday Times, 12 September 2004.
[33] Peter Bruce, “The end of an era,” Financial Mail, 30 July 2004.
[34] James Ngculu, “Parliament and Defence Oversight: The South African Perspective,” African Security Review 10, No. 1 (2001), http://www.iss.co.za/pubs/ASR/10No1/Ngculu.html.
[35] “SA soldiers ‘robbed immigrants,’” BBC News, 18 August 2004, http://news.bbc.co.uk/2/hi/africa/3578172.stm.
[36] “SA proposes quicker land reform,” BBC News, 27 July 2005, http://news.bbc.co.uk/1/hi/world/africa/4720023.stm.
[37] South Africa’s Economic Transformation: A Strategy for Broad-Based Black Economic Empowerment (Pretoria: Department of Trade and Industry, 2003), 12, http://www.dti.gov.za/bee/complete.pdf.
[38] Constitution of the Republic of South Africa 1996, Chapter II (25).
[39] Blood and Soil: Land, Politics and Conflict Prevention in Zimbabwe and South Africa (Brussels: International Crisis Group [ICG], September 2004), 139–50, http://www.crisisgroup.org/library/documents/africa/southern_africa/land....
[40] Ibid., 162–68.
[41] Report of the Committee of Inquiry into Farm Attacks (Pretoria: South African Police Service, 2003), http://www.saps.gov.za/statistics/reports/farmattacks/_doc/summary.doc.
[42] “Govt ponders new land policy,” IRIN News, 1 August 2005, http://www.irinnews.org/report.asp?ReportID=48388.
[43] Blood and Soil (ICG), 165.
[44] “Evictions worsen low-cost housing crisis,” IRIN News, 27 July 2005, http://www.irinnews.org/report.asp?ReportID=48330.
[45] Global Integrity Report: South Africa (CPI), Indicator No. 56.
[46] Public Protector Act, No.23 of 1994.
[47] Global Integrity Report: South Africa (CPI), Indicator No.53.
[48] It should be noted that provincial arrangements for some post-employment restrictions are in place in Guateng and the Western Cape.
[49] Ethics in Post-Apartheid South Africa (Idasa, 2003), 29–31, www.idasa.org.za.
[50] Interview with Hennie Van Vuuren and Andile Sokomani of the Institute for Security Studies’ Corruption and Governance Programme.
[51] Van Vuuren, National Integrity Systems (TI), 52.
[52] Ibid., 56.
[53] H. van Vuuren, “Small Bribes, Big Challenge: Extent and nature of petty corruption in South Africa” Crime Quarterly (ISS), No. 9 (2004).
[54] Public Sector Anti-Corruption Strategy (Pretoria: Department of Public Service and Administration, January 2002).
[55] The strategy includes nine considerations: review and consolidation of the legislative framework; increased institutional capacity; improved access and protection for whistle-blowers; prohibition of corrupt individuals and businesses; improved management; partnerships with stakeholders; social analysis and policy advocacy; and awareness, training, and education.
[56] Armenia, Bulgaria, Macedonia, Peru, and South Africa. Access to Information Tool 2003: South Africa (New York, Open Society Institute, 2003)
[57] Interview with Alison Tilley of the Open Democracy Advice Centre (ODAC)
[58] Global Integrity Report: South Africa (CPI), 2.
[59] A. Folscher, W. Krafchik, and I. Shapiro, Transparency and Participation in the Budget Process: South Africa (Idasa, December 2000), 13.
[60] Budget Brief no. 109: How transparent is the budget process in South Africa (Idasa, October 2002), 2.
[61] Van Vuuren, National Integrity Systems (TI), 108.
[62] Ibid., 104.
[63] Only a high court may impose this extreme sanction. Regional courts can impose a fine or up to 18 years’ imprisonment. Magistrate’s courts can impose a fine or up to five years’ imprisonment.
[64] Van Vuuren, National Integrity Systems (TI), 106.
[65] J. February, Commissioned Case Study: South Africa—Democracy & the South Africa Arms Deal (ISS, March 2004), 2, http://www.issafrica.org/SEMINARS/2004/1503graft/rsa.pdf.
[66] This controversy contributed a great deal to the resignation of both Judge Willem Heath, the then-head of the SIU, and Gavin Woods, the then-chair of SCOPA.
[67] Joint Investigations Report into the Strategic Defense Procurement Packages (Cape Town: Public Protector of SA/AGSA/NPA, November 2001), 373, http://www.info.gov.za/otherdocs/2001/investigationreport.htm.
[68] Much of this condemnation focused on former NDPP Bulelani Ngcuka, who announced in 2003 there was “prima facie” evidence to suspect Zuma of corruption, but not enough to prosecute. Many Zuma supporters believed Ngucka’s statement was politically biased, a charge that gained traction when Ngucka’s wife was selected to replace Zuma as deputy president.
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