Once South Africa begins to understand the chasm that separates policing’s insiders from outsiders, we can start to appreciate the need to design the normative bridges necessary to address criminality in all its forms.
The Madlanga Commission of Inquiry is revealing systemic governance dysfunctions not limited to the South African Police Service. So far, the submissions to the commission have demonstrated an abstraction of a larger issue.
Lt-Gen Nhlanhla Mkhwanazi’s historic media conference appears to have been a bureaucratic retaliation against the complex infiltration of the criminal justice system. Those targeted were criminal syndicates and certain political, cognitive, legal and criminal justice system elites and operatives.
Central to the resistance is testing the extent to which police officers and the public service in general can, without repercussions, survive if they refuse to obey unlawful orders from executive authorities. Second, and more profoundly, it concerns the ability of public service members appointed based on policy considerations to continue acting with impunity within a rules-based constitutional order.
Besides issues like the Political Killings Task Team, the South African public administration system — grounded on principles that define its normative obligations — is under scrutiny. One such principle, enshrined in the constitution, is that the public service should loyally implement the government’s lawful policies (orders). These principles generally presume an executive authority system that functions with integrity and upholds the normative principles outlined in the constitution.
In his submission to the Madlanga commission, Mkhwanazi provided evidence highlighting the practices and discipline of public administration in ways few or no classroom discussions could demonstrate. While the public concern that prompted the inquiry is corruption in the police service, the general’s testimony also emphasised the troubling issues faced by those in the public administration system regarding how they handle the execution of unlawful orders by executive authorities.
It would shock the country to learn how much the state has spent on legal fees defending the arbitrary decisions of executive authorities against appointed officials who refused to execute unlawful orders.
When the general revealed how he requested former minister of police Nathi Mthethwa to excuse him as acting national commissioner because he would not carry out what he then regarded as an unlawful order, this was a subtle act of conscientious public service that went largely unnoticed.
The focus might be on the police, but this context characterises the public service across all spheres of government. The July 6 courage of the general makes the difference; otherwise, executive authority overreach has been the unfortunate norm for some time, and it is not unique to South Africa but universal.
Under similar circumstances raised at the Madlanga Commission, the careers of individuals in public service, private enterprises operating within the public sector and qualified professionals’ reputations have been shattered. Executive overreach has undermined the standard of government decisions, particularly in areas where professional judgment should take precedence. This issue is especially severe in engineering, criminal justice, health and public education.
The overreach of executive authority and its complicity in the unfortunate and catastrophic decline of normative state governance at the expense of arbitrary and prerogative decisions by the executive mark the culmination of years of erosion of a rule-based public administration system envisaged by the constitutional order.
It would shock the country to learn how much the state has spent on legal fees defending the arbitrary decisions of executive authorities against appointed officials who refused to execute unlawful orders. The queues of incomplete disciplinary hearing files, missing evidence dockets, unpaid invoices by service providers, wrongful arrests and criminal withdrawals indicate how arbitrary decisions by executive authorities have clogged the administration.
Suppose the ‘nine wasted years’ theory holds and the Zondo Commission’s findings remain unreviewed. President Cyril Ramaphosa continues to be unchallenged, the ANC is accused of being the primary culprit in the document, and Mkhwanazi’s submissions remain uncontested. In that case, the disintegration of the public administration system due to executive overreach might have normalised the idea that anything is permissible in the pursuit of the arbitrary or prerogative whims of those in power.
Due to its close ties with certain executive authorities, the criminal underworld adopts ethos, strategies and tactics from overreach frameworks to evade accountability. Unfortunately, this is often supported by an otherwise compromised political party system. Political parties, as the source of individuals who eventually become executive authorities, have, along with the sealed CR2017 funding records, which remain unopened evidence, become inexpensive to buy and easy to manipulate.
Unless a dedicated and constant review and challenge of the established practice of executive authority overreach is specifically mandated, the resulting conventions can develop into habits that may be difficult to change.
Societies that admit mistakes, recognise that they might have lacked proper theories underpinning their experiments, and act quickly to correct course, tend to emerge as significant winners. The Madlanga Commission should assist in finalising an otherwise comprehensive ongoing public service reform, which may have been hindered by unchecked executive overreach.
• Dr FM Lucky Mathebula is the head of faculty, People Management, and founder of The Thinc Foundation, a think-tank based at the Da Vinci Institute
For opinion and analysis consideration, email opinions@timeslive.co.za
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