GOVERNANCE AND THE PRESIDENTIAL PARDONS

The passed buck returns

The presidential pardon to political prisoners has been criticised for undermining the TRC's amnesty process; however, argues Steven Friedman, the decision has underlined that dealing with apartheid era abuses has always been a political issue

Trying to turn important political questions into technical legal issues may cause more problems than it solves. A revealing topical example is the amnesty process assigned to the Truth and Reconciliation Commission - and the presidential pardons it has prompted.

How to deal with apartheid era abuses is a political question. It demands that we find a balance between several, competing, factors.1 There is a need to demonstrate to a crime-ridden society that those who infringe the rights of others cannot act with impunity - but this must be balanced against the dangers of alienating those with the ability to derail democracy.2 The sense of justice of many who fought apartheid is offended by suggestions that those who defended the system and those who fought it should be treated as moral equals;3 this needs to be balanced against the need to convince minorities that post-apartheid justice is not simply the morality of the victor.4 These are not judicial issues: they require political judgement, public debate, and negotiation.

Referring these questions to the TRC amnesty process was therefore an attempt to pass off a difficult political issue as a judicial one, presumably in the hope that decisions handed down by judges would enjoy more respect, and prove less divisive, than the alternative (which would have entailed asking the TRC merely to make findings of fact and then leaving it to the political process to determine whether and how to act).

Failed strategy

The pardon president Thabo Mbeki recently extended to 33 prisoners indicates finally that this strategy has failed. While parts of the government do not want the pardon to be seen as a political decision, the ANC and PAC, with which most of the pardoned prisoners were associated, welcomed the release of the 'political prisoners', and Mbeki himself said they were 'a group of people who petitioned government on the basis that they were involved in the struggle'.5 Inevitably, the decision has prompted a series of pardon requests. The killers of SACP leader Chris Hani6 and former apartheid era military officers7 are among those who insist that they too are entitled to be pardoned, while the PAC says it would like more pardons.8

The former chair of the TRC, Archbishop Desmond Tutu, has led the criticism of the pardon, insisting that it undermines the TRC process. Tutu has labelled it 'the thin edge of a general amnesty wedge',9 suggesting, of course, that the logical conclusion was a decision to pardon everyone who had committed a politically motivated crime during the apartheid period.

Tutu is correct to see this as a vote of no confidence in the TRC's amnesty process. What he may not be considering is that this may be more of an indictment of the latter than of the former.

Rather than seeing the decision as political interference in the TRC process, it might be more appropriate to conclude that, if parties ranging from the ANC and PAC through to the Freedom Front want pardons for people in their camp,10 the amnesty process failed to meet its presumed goal of finding a way of handling our past that would enjoy the support or at least the compliance of the key political actors. This does not imply that the TRC or the judges who presided over the amnesty process were incompetent: rather, the important lesson may be that the attempt to turn our past and the political choices it raises into a legal matter was always doomed to fail, regardless of who presided over it, because only political debate and negotiation have any hope of producing the needed consensus.

The presidential pardons and the demands they have prompted have therefore placed the amnesty issue precisely where it belongs: in the political process. And the more they spark off a national debate on how to handle the crimes that apartheid produced, the more progress society will make to a common sense of justice.

This does not mean that the manner in which the pardons were issued is best suited to do this. The president's approach seems to assume that issuing pardons will resolve that which the amnesty process could not. This is unlikely. Either only some will be pardoned, prompting a sense of injustice among those who were not, or everyone will be - Tutu's feared general amnesty - in which case the families of some victims will feel that justice has been denied. In reality, action by the president cannot settle this issue: it can, at most, begin the discussion which may in time produce a settlement.

Ideally, this would have entailed a government statement before the pardons, indicating what the president planned to do, and clearly spelling out why he proposed to do it. The effect would have been to express the government's view on the balance between post-apartheid justice and reconciliation, inviting debate on it.

While that is no longer possible, it is not too late for a clear government statement on the criteria it plans to apply to pardon applications. That would elicit a national discussion that might build a common sense of justice, rather than a pardon process that risks creating a perception that we are coming to terms with our past through secret political deals.

We may find in time that this is a practical governance question since, the more we build a common view of justice, the easier it will be to co-operate to fight crime, and the less likely citizens are to develop a cynicism about the justice system.

The point has wider governance implications. It is, firstly, a warning against relying on the justice system to settle policy disputes - on, for example, housing and health care. Ultimately, unless policy enjoys broad political support, it will not be implemented, whatever the courts say.

Secondly, the failed attempt to rely on legal experts rather than politicians to settle the difficult question of post-apartheid justice may also be a warning against the broader trend of using technical experts to settle governance questions that pose difficult political challenges. Repeatedly, politicians and senior officials pin their hopes on technical specialists to come up with 'solutions' to questions that require political choices, and therefore public debate. The hope, of course, is that the decisions that result will enjoy greater public confidence because they are the work of 'experts'. There are many examples, but GEAR's attempt to reduce the difficult politics of macroeconomic policy to a technical exercise in economic analysis is the most famous.

The amnesty saga shows that, where governance problems require difficult national debate and negotiation, they are more likely to be solved if that need is acknowledged and faced. Passing the buck to the 'experts', judicial or otherwise, is likely only to delay the challenge, not remove it.

Steven Friedman is the Director of CPS.

Endnotes

For a discussion of some of these debates, see Graeme Simpson and Paul van Zyl, South Africa's Truth and Reconciliation Commission, Temps Modernes, no 585, 1995, pp 394-407.

See Jonathan Allen, Between retribution and restoration: justice and the TRC, South African Journal of Philosophy, 20 (1), 2001, pp 22-45.

Kader Asmal, Ronald Suresh Roberts and Louise Asmal, Reconciliation through truth: a reckoning of apartheid's criminal governance, New York: Palgrave, 1998; Mathatha Tsedu, Questioning if guilt without punishment will lead to reconciliation, Nieman Reports, vol 53/54 issue 4/1, winter 99/spring 2000, pp 220-1.

See, for example, the complaint that the TRC process was dominated by the political majority in Hermann Giliomee and Charles Simkins, The dominant party regimes of South Africa, Mexico, Taiwan and Malaysia, in Giliomee and Simkins (eds), The awkward embrace: one-party domination and democracy, Cape Town: Tafelberg, 1999.

Business Day, 20/5/02.

Sunday Times, 26/5/02.

The Star, 27/5/02.

The Mercury, 26/5/02.

Sunday Independent, 19/5/02.

See, for example, The Star 13/5/02.

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THE HIV/AIDS DEBATE

'Science' and 'knowledge'

The controversy over the causes of HIV/AIDS has been presented as an attempt to rescue scientific knowledge from being compromised by political debate. However, argues Leslie Dikeni, we may need more - rather than less - debate on this issue

THE SHIFT in government policy on HIV/AIDS is seen by many as a triumph for 'science' over politics, ending the debate on how to respond to the virus. In reality, 'science' may be less scientific than it seems, and, far from needing less political debate and interaction on this issue, we may in fact need more.

The view that the AIDS controversy was caused by politicians' poor grasp of 'scientific knowledge' was frequently expressed in the debate. Thus a newspaper columnist, who often criticises the state over its HIV/AIDS policies, has written:

'Branch members [those of the ruling ANC], a majority of whom [have never seen or been seen in a science laboratory], are expected to proffer scientific opinion on a subject that even baffles the most informed of medical scientists. It must be pointed out that, despite his penchant to bamboozle the uninformed with the newly acquired scientific jargon, president Thabo Mbeki often displays an alarming ignorance and confusion with the most basic fundamentals of medical science. How much more so in the case of branch members. Indeed, South Africa is a country of miracles!'1

Similarly, the government has frequently been taken to task for continuing a debate over AIDS rather than addressing the problem in practice. For example, a COSATU leader has declared: '... It is important to acknowledge that thousands of workers are infected, and that the time for unnecessary debates on the issue was over. What is needed is a roll-out of these drugs to our people ...'2

The government's agreement to extend the supply of the drug is likely to be seen as a further sign that the time for debate is over, and that further discussions of AIDS and its causes are pointless. Since a solution is clearly available, this view insists, all that is required is to begin implementing it.

But, while statements such as these perform an important function by acknowledging that many people are suffering from the virus, and need help, they do not help us deal with the problem. They ignore the reality that, however widespread the scientific consensus on AIDS, we still lack a cure, and that, until we have one, claims that debate over the nature of the virus must end because we know all we need to know are premature. Both the newspaper columnist and the trade union leader adopt the notion that knowledge about or analysis of HIV/AIDS is the exclusive domain of 'expert medical practitioners'. But this is contradicted by the limited ability of scientific knowledge to offer remedies to the victims of AIDS.

In reality, knowledge about HIV/AIDS is socially negotiated, the outcome not only of the theories of scientists but also of interaction between the state, the market, and civil society, each of which brings particular interests to bear on the topic. The state, with its interest in being credited with meeting its responsibility to citizens living with the virus, is required to navigate its way through the various groups with an interest in HIV/AIDS.3 The media have an interest in being seen to hold the state to account on behalf of readers, listeners, or viewers. Civil society or social movements are concerned to protect the safety and health of their constituents by securing resources from the state to combat the virus.4

And business has obvious economic interests in respect of HIV/AIDS, ranging from the attempts of pharmaceutical groups and research companies to find markets for their drugs,5 through other firms' interest in responding to state pressure to contribute to the fight against the pandemic, to the effects of the virus on the labour market.

Each of these groups contribute to building knowledge about HIV/AIDS by helping to shape the debate on what we know about the virus. Each does so in accordance with its interests,6

often endorsing those aspects of current scientific understandings that are consistent with its needs and goals.

This interaction not only produces policy but also 'knowledge': different understandings of the problem interact and are negotiated between the various interests, which may result in a common understanding of a problem, and its solution.

If this way of seeing policy debates is accepted, knowledge of HIV/AIDS - or any other scientific topic - is not as indisputable as it may seem. That which is negotiated by social interests may be re-negotiated, and the greatest danger to the attempt to find solutions is therefore closing debates by insisting that scientific knowledge is indisputably true and therefore beyond debate. As noted earlier, that these claims should be made about a virus for which no medical cure has been found shows the limits of this approach.

The argument has important implications for governance. If we assume that the findings of medical science on an issue such as HIV/AIDS is beyond debate - or, indeed, that this is true of scientific or technical knowledge on any issue that may be the subject of social action - then governance becomes a matter of applying the appropriate scientific knowledge. But if we accept that knowledge is the outcome of interaction and negotiation, it becomes important to subject scientific knowledge to continued debate. To close off debate in the name of science is not only to obstruct the search for solutions, but also to use knowledge as a source of illegitimate power over society, not as an instrument in its service.

Since, in the case of the AIDS debate as well as many others, our scientific knowledge is far less certain than it seems, democratic governance requires that the debate be kept open - even when the monopolists of scientific knowledge and their supporters seek to close it.

Leslie Dikeni is a senior CPS researcher.

Endnotes

Eyes wide shut, Mail & Guardian, 5/4/2002.

Men and women of steel take up arms in AIDS war, The Star, 30/4/2002.

For a further reading of the state's actions on HIV/AIDS, see ANC, 1 December 2000, World AIDS Day, http://www.anc.org.za./ancdocs/miscaids.html

For some of the concerns of the social movements that conflict with those of business and at times find points of accommodation with those of the labour movement see, for example, 'AIDS need not be a train smash', Sunday Times 16/12/2001. See also 'Mining industry considers collective treatment of HIV/AIDS', The Star, 16/4/02, and The Star 30/4/02.

For an example, see 'State's about-turn on AIDS drugs provides relief for Aspen', Business Day, 22/4/02.

For an interesting debate on the interests of pharmaceutical companies in South Africa, see the letter by president Thabo Mbeki to the leader of the opposition, Tony Leon, and the latter's response: Mbeki versus Leon, http://www.sundaytimes.co.za

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DEMOCRATIC PARTICIPATION

A voice for the jobless

Because the unemployed tend to be poorly organised, they have a weak voice in governance. However, argues Malachia Mathoho, rather than giving them special representation in government forums, this shortcoming may best be remedied by strengthening representative institutions

CITIZENS who most need a voice in the governance structures of our new democracy are those least able to find one.

The unemployed, said to comprise 41,5 per cent of the economically active population,1 were once united with the employed in the fight for democracy. Now that the vote has been won, they find it difficult to make their voice heard.

This is not because they are deliberately excluded. In any democracy, the vote is worth little unless citizens are able to organise to influence decisions. The employed are able to organise themselves to influence policy-making: they are concentrated at workplaces where they meet during every working day, and can also use their organisations to extract concessions from employers.

The unemployed - most of whom are young people with no work experience and who live in rural, mainly former homeland,2 areas - lack these assets. One consequence is that, although the causes of unemployment are hotly debated, the jobless do not, in the main, participate in these debates.

When inclusive democracy was established in South Africa, the favoured way of ensuring that all citizens had a voice in the decisions that affected them was the establishment of forums through which citizens groups were meant to shape policy: nedlac is perhaps the most important example, since its right to be consulted was entrenched in law.3 But forums, NEDLAC included, inevitably provide a platform for well-organised groups such as labour and business: while its development chamber is meant to provide a platform for, among other sections of society, the unemployed, it tends to consist of organisations whose representativeness is not demonstrated.4 Thus Aubrey Lekwane of NEDLAC has acknowledged that the voice of the unemployed is not heard in the council, adding that this poses a challenge to it.5 COSATU has also acknowledged that the unemployed often do not have the opportunity in practice to participate in the law-making process.6

These realities do not prevent key participants in the debate from speaking on behalf of the unemployed. Those who claim to know the needs of the jobless range from free market lobbies pressing for relaxations in labour law to unions calling for a basic income grant. The minister of labour has assured 'those who are not in formal employment relationships' that 'the government is trying to make laws appropriate and relevant to all situations', implying that it too is caring for the need of those without work. But as long as the unemployed lack a voice, those who claim to speak on their behalf are largely talking about them, not for them, and there is no guarantee that what is said to be required by the unemployed is what they really want.

But, while the problem is increasingly clear, the solution is not. For some, it lies in granting a greater role in formal consultation processes to organisations of the unemployed. But groups claiming to speak for the unemployed represent at most a small minority of the jobless. Thus the Malamulela Social Movement for the Unemployed is perhaps the best known of these organisations. It campaigns against laws that regulate the labour market, and complains that it lacks access to official forums: it says it was included in the 1998 job summit only two days before it began, and was not allowed to share a platform with other main constituencies. But it claims a membership of only 300 000; even if this figure is accepted, it is only a fraction of the national unemployment figure of 7,69 million.7

Ultimately, the voice of the jobless will remain weak until unemployed people begin to organise - or, more likely, they are organised by people who have both the skills to organise others and an interest in mobilising the jobless to make demands on the authorities. Evidence from elsewhere in the world suggests that, if anyone organises the unemployed, it is likely to be retrenched former union members who are familiar with organising for common demands but who, because they have lost jobs, have developed a community of interest with the jobless. Thus COSATU says it plans to lead a process aimed at building a 'progressive and autonomous' unemployed movement, which could include organisations of the underemployed or self-employed.8

Social movements

Even were that to happen, it is unlikely that the unemployed would be organised in the way in which workers or businesses or professionals are. They would probably be recruited into more loosely organised social movements that would rely on drawing attention to their demands rather than on tight organisation. It is therefore unlikely that they would be best heard by taking part in forums established by the government. The minister of labour has, for example, indicated that law-making is a long process involving consultations, negotiations, public hearings. and much legal drafting.9 Such a complicated and technical process tends to favour highly organised groups, and will probably disadvantage organisations of the unemployed.

Those who seek a greater voice for the unemployed in governance may therefore do better by seeking to make government institutions more accessible to those who want to make demands on them. Thus the Department of Labour claims to have an open door policy10 which could ensure access for the unemployed should they mobilise to make demands. But more may be required than a willingness to hear the unemployed, should they wish to speak. The department may also need to make an effort to fully inform the jobless of current trends that affect them, so that they have a greater chance to express themselves on policy.

More broadly, the unemployed are likely to enjoy greater potential access to governance if representative institutions, from parliament to municipal councils, are strengthened. At present, these institutions are weak, and often limited to implementing the decisions of national government. The more representative institutions at all levels are able to take decisions, and the closer they are to grass-roots citizens, the more the unemployed are likely to be heard.

Making representative government work better, and ensuring that the government fully informs citizens of the decisions that affect them - nd gives them a hearing should they wish to react - may be a more effective way of giving the unemployed a possible voice than a reliance on formal negotiation and consultation processes that inevitably reward strength of organisation over strength in numbers.

Malachia Mathoho is a CPS researcher.

Endnotes

This figure has been quoted by COSATU's communications department. See COSATU, press statement on unemployment figures, 27/03/2002, http:/ www.cosatu.org.za/press/2002/unemployment_figures-25034.html

Jeremy Baskin, Job losses: the (un)usual suspects? Policy Forum no 2, August 1999, Johannesburg: CPS, p 2.

See http://www.nedlac.org.za

Steven Friedman, South Africa is getting democracy back to front, Business Day, 3/4/95.

Joshua Jackson, Voice and theory in South Africa's unemployment crisis: Do we really need to hear the voice of the unemployed? Wits Student Journal of Economics, University of the Witwatersrand, Johannesburg, 1999, p 6.

COSATU, Trade unions and the informal sector, The Shop Steward 9(3), September 2000.

Figure quoted in COSATU press statement on unemployment figures.

COSATU, Trade unions and the informal sector.

Membathisi Mdladlana, minister of labour, speech in the National Council of Provinces (NCOP),

28/2/2002.

Jackson, Voice and theory in South Africa's unemployment crisis, p 9.

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URBAN MANAGEMENT

The perils of abstract planning

The unsuccessful relocation of Johannesburg's informal traders shows that planners should build on existing social realities rather than trying to reshape the inner city in their own image, writes Kenny Hlela

A GOOD urban renewal plan should protect the weakest members of our society, which may require a different approach to that which is now fashionable among local planners.

Revitalising decayed inner cities sounds like a project certain to benefit all. But the desire of planners and officials to reshape places where the poor work and live can work against the interests of the weaker members of society. The experiences of informal traders who have been moved to a formal trading zone in Hillbrow - one of several planned - in the course of Johannesburg's Hillbrow/Berea Regeneration Initiative (HBRI) is a case in point.1 While the formal zone has been meant to improve the efficiency of hawkers' markets, and improve the inner city, it has not lived up to expectations.

The HBRI is an ambitious project: it seeks to achieve a variety of aims without recognising any potential competition between them. Thus it seeks to address the fears of business, attract tourists, and accommodate poor citizens. Moving informal traders is meant to meet all these aims; together with escalating crime, informal trading has been identified as the main reason for the flight of business from the inner city to the suburbs. And planners presumably believe that tourists are also deterred by street trading. Furthermore, an orderly formal market is meant to offer traders a better environment.

But informal traders say the formal zone, which has cost about R4 million, has created many problems. One is the monthly levy to be paid by all those who want to trade in it - a new concept to the informal traders, who paid nothing before. Nor do the traders seem comfortable in a more formal environment in which, for example, financial record-keeping is required. According to an HBRI field worker, at meetings held to consult residents of those areas on renewal plans, they said they were less likely to buy from the formal market.2 Some traders say the move has disadvantaged them to such an extent that can no longer afford to pay the rent for their flats. An elderly woman trader claimed her income had dwindled from up to R400 a day to 'rarely more than R40'.

So the initiative has not improved the traders' circumstances. Nor, despite elaborate consultation exercises to ensure that urban renewal meets the needs of all, do they feel they were party to the creation of the formal zone. The Johannesburg City Council has relied on negotiations with the informal traders' union - but the link between the traders and their presumed representatives is complicated. Traders argue that their union representatives do not give them clear answers, and that their concerns are never considered during negotiations. Some are unwilling to attend negotiating meetings because they prefer to spend the time selling. They complain that the meetings are briefings rather than forums to express their views. And some interviewees complain that some of their colleagues approach the authorities as individuals; they say most problems are created by lack of unity. Whatever the truth, meeting informal traders' needs clearly requires more than negotiations with a formal association.

Nor has the market kept the traders off the streets. Most say they return to the streets after 4 pm, as police don't seem to operate in the afternoons. Some say they visit the formal trading zone merely so that the authorities do not realise that traders are back in the streets. Some also collaborate with police in exchange for special favours.

The urban renewal strategy may also have reinforced existing power relations. One trader reports: 'The other problem is the Metro Police. If you pay a bribe, they don't chase you off the streets. There was a day when we nearly had a confrontation with them, because they seem to be selective in the way they apply the law. We need consistency. They tend to favour those who are prepared to pay more.'

Most of these problems emanate from the failure of the authorities to examine the history of informal street trading. Most people who trade in the streets could not be accommodated in the mainstream economy. They then identified opportunities in the streets that relied on visibility and accessibility: most of their stalls were located in busy areas, usually in front of popular retail shops. Formalising their trading areas has thus tended to marginalise them even further by cutting them off from their market. The promulgation of city by-laws curbing street trading has enforced existing power relations, in which officials take advantage of the traders. The only winners have been the better-off, formally employed, citizens of Hillbrow who find themselves with more public space.

Informal street traders are an important section of the inner city poor. There are an estimated 4 000 informal traders in Johannesburg, of whom many, if not all, have been by driven by unemployment to trade on the streets: interviews with traders show that most provide a livelihood for a number of families. But they are, of course, not the only poor people in the inner city - for example, it has been estimated that there are about 4 500 homeless or 'street people'.3 Could it be, then, that removing the traders has created a better prospect of revived growth in the inner city that will benefit its other inhabitants?

Not now - and probably not in the future either. There is no guarantee that, if informal traders are chased off the streets, businesses will return to the CBD: it is not easy to establish a causal relationship between street trading and the presence of formal businesses, and it could also be argued that the increase in informal business in the inner city has been a response to, not a cause of, the vacuum created by the flight of formal business. Factors contributing to the decay of the inner city are very complex, and are the product of local, national, as well as global forces. While Hillbrow' informal traders have been removed from the streets to the designated trading zone, business has not returned to the city in large numbers. Instead, the exodus has continued, with the Johannesburg Stock Exchange one of the latest institutions to leave for the suburbs.

In sum, the renewal plan seems to have been based on some important misunderstandings, both of informal traders and their needs, and of the requirements for growth in the inner city. An approach that accepts practices such as street trading as an inevitable feature of inner city life and seeks to regulate it rather than remove it to a sanitised formal setting may be best suited to the needs of the traders and the inner city. More generally, effective governance of the inner city may require greater official respect for existing realities and how planning can build on them, rather than trying to reshape the inner city in the planners' image.

Kenny Hlela is a CPS researcher.

Endnotes