IS THE GOVERNMENT IN CONTEMPT OF THE CONSTITUTION FOR FAILING TO PROTECT THABISO ZULU AND OTHERS?

On 12 February eNCA’s Checkpoint ran a programme on the failure of the government to protect corruption whistle-blowers who are loyal comrades and to bring any successful prosecutions against those implicated by prima facie evidence in corruption. The programme provoked a flood of Twitter outrage about rampant corruption, and the failure of the government – especially the ‘arrogant’ Minister of Police, who was accused of ‘gambling with people’s lives’ to take remedial action. ‘Hall of Shame’ focussed on the consequences suffered by those ANC councillors and their associates to expose those involved in corruption totalling almost R38 million rand of taxpayers’ money which had been earmarked for the renovation of the Umzimkhulu Memorial Hall. Two councillors, including Sindiso Magaqa, had been killed, another had survived the attack which had resulted in the death of her colleague, and she and two of her ANC comrades, who were dedicated to serving their communities and exposing corruption, were living under constant threat of death. This whole saga raises extremely serious questions about the nature of governance in South Africa, including its commitment to the Constitution of the country, and to fighting corruption – and the failure of Chapter 9 institutions to fulfil their mandate.  

The Public Protector’s reports and the failure of the government to act

In her 2018 reports the Public Protector confirmed the veracity of corruption allegations relating to the supposed renovation of the hall. The matter was handed to the Special Investigation Unit (SIU) for investigation, but the unit has already closed its file.  One of the reports confirmed that the lives of whistle-blowers Les Stuta and Thabiso Zulu, who had taken up the anti-corruption baton of Sindiso Magaqa, were in grave danger. The Minister of Police was instructed to provide them with the security recommended by two State security threat assessments.  Both Stuta and Zulu had spoken out strongly at Magaqa’s funeral and Zulu subsequently went even further giving evidence at the 2017 Moerane Commission which pointed fingers at the involvement of senior regional ANC figures in the Magaqa death. It is believed that the National Commissioner of Police had already approved the protection, but it was blocked by his Minister’s immediate referral of the report for High Court review.  Continuing pleas to protect them fell on deaf ears and in October 2019 Thabiso Zulu was shot and injured, narrowly missing death. 

President Ramaphosa reneges on agreement

Soon after Zulu was shot he spoke telephonically with President Ramaphosa, who agreed that he would receive the necessary protection.  It has not materialised, raising questions about who really runs this country. Why does he retain in his cabinet a minister who is in clear breach of his constitutional obligations to ‘prevent, combat…..crime [and] ‘to protect and secure the inhabitants of the country’ ( Section 205(3).  It has been known for over two years that the lives of Zulu and Stuta are in grave danger since that was detailed in two, thorough threat assessments by state security agencies, including the police – and confirmed by the attempted murder of Zulu.  The question is why, especially as countless government functionaries, including in  municipalities rendered dysfunctional by corruption, are costing taxpayers a small fortune in excessive bodyguards?  What sort of government rewards rogues with perks but denies protection to those who are risking their lives by acting in support of its own stated fight against corruption?  Italy even provides protection to investigative journalists. There is no known animosity between Cele and Zulu, who are comrades of long-standing – so who in ANC leadership positions with grudges against Zulu are pressurising the President to backtrack on Zulu’s safety?  Zulu was fighting corruption before Magaqa’s murder, and in the process, has made political enemies outside of Umzimkhulu. Together with then Speaker of Sisonke municipality, Mandla Ngcobo, he exposed hundreds of millions of rand in irregular expenditure which, despite confirmation by the auditor, is still under investigation by the SIU and the Hawks.  Ngcobo was persecuted and removed from his position, and both men received death threats.  Zulu’s ongoing work has secured several court convictions, the most recent being that of a traffic policeman found guilty of fraudulently assisting learner license applicants to pass their tests.

The Chapter 9 institutions

Despite her report – which drew on existing threat assessments – the Public Protector has failed Zulu and Stuta by not challenging the review in court, her excuse being that her office has ‘financial constraints’.  It is thus puzzling that her office has found money for other high court challenges which do not involve life or death issues, such as the apparent vendetta against Minister Pravin Gordhan.

In terms of the powers given to it in Section 184 of the Constitution, the SAHRC is, among other things, mandated to ‘take steps to secure appropriate redress where human rights have been violated’ (Section 184(2)(b).  From the point of view of independent human rights defenders their performance has been disappointing, the perception being that it backs away from confronting the government.  The failure of the Department of Health (DoH) in KZN to service almost new oncology machines – which conduct reeked of corruption – resulted in the needless and painful deaths of countless hundreds of cancer victims. The SAHRC produced toothless reports, which apparently ignored, and failed to act on, a dossier sent to it by a medical rights advocacy group. The dossier detailed serious illegal and corrupt actions by DoH , and how parliament had been misled. Those responsible – senior government functionaries – have been let off scot free and remain in powerful positions,   while families who lost loved ones have been denied even the limited closure of the families of the Life Esidimeni patients.

Since the right to life is the most fundamental of human rights, will the SAHRC  use the constitutional powers given to it to take whatever steps are needed to protect Thabiso Zulu (and, by extension others in the same predicament) – especially as the Minister of Police is, himself, in clear breach of his constitutional obligations.  The Commission has already issued a public statement of concern and reportedly the Chairperson and the CEO have been very supportive of Zulu.   From previous experience, it is clear that one of the problems facing the Commission is that it is a cumbersome bureaucratic body and, if decisions are taken to offer legal assistance to Zulu (who has, after all, suffered, and continues to suffer, severe emotional trauma as well as  physical injury), they may even be undermined by people within their ranks who enjoy an unacceptably close relationship with government functionaries in the criminal justice system, including in the police.   Hopefully, the Commission will not be deterred by these potential pitfalls, but take appropriate precautions against them.  Given the intransigence – and contempt for the Constitution – showed by the most senior members of government – appropriate action by the Commission is our last hope.  Will it grasp the nettle and demonstrate to us that it is courageous enough to challenge the government on constitutional grounds?