Martin van Staden of the Free Market Foundation misses the mark in his contribution to the columns of the Daily Friend last week concerning the introduction of the AmaPanyaza by Gauteng premier Panyaza Lesufi (A reluctant defence of AmaPanyaza after the latest own-goal by DA, FF+, 6 November).
Van Staden reluctantly defends the totally illegal notion of setting up the AmaPanyaza, Lesufi’s version of “kitskonstabels”, and lambasts what he calls “federalist parties” for objecting. Actually, the objection was in the form of a complaint, upheld by the Office of the Public Protector, that was made by Accountability Now some two years ago.
The “reluctant” defence of Lesufi is based upon the worthiness, in Van Staden’s eyes, of devolution of policing powers to provincial level as part of his preference for a more federal form of government in SA.
The truth is that South Africa is a country of laws in which both the Constitution and the rule of law are regarded as supreme. A preference for federalism does not magically suspend the rule of law.
The Constitution itself stipulates that laws or conduct inconsistent with the Constitution are invalid. The AmaPanyaza fell afoul of these provisions set out in sections 1 and 2 of the Constitution itself. It is not a legitimate purpose of government to create a body that is not contemplated by the Constitution simply because it feels politically expedient to do so in a pre-election period. Letting loose underqualified personnel in the law enforcement field is a risky business, as experience in Gauteng has shown.
Those who prefer devolution of policing powers to provincial or even local level are not without a remedy. The Constitution is not cast in stone. It has been amended more than a dozen times, and, if the necessary votes can be mustered, the Constitution itself can be amended and new laws can be introduced as a matter of routine business of parliament. Lesufi chose a shortcut, an illegal shortcut, which Van Staden inexplicably supports, albeit with reluctance.
Those who value the sanctity of the rule of law will recognise that painting outside the lines of what the law allows is inconsistent with the rule of law and the Constitution itself. The complaint on which the Public Protector acted was based on the rule of law and by simply applying the rule of law to the facts, the complaint was upheld and Lesufi was obliged to retreat from his scheme.
The fact that he has now, post elections, abandoned the scheme, suggests that his motives were related to garnering political support rather than improving the state of law enforcement in his province. The recruits got themselves into multiple scrapes of the kind that suggests that their training was inadequate.
Any change in governance that ignores the rule of law is vulnerable to attack if it proves to be inconsistent with the Constitution. The introduction of the AmaPanyaza in the way in which Lesufi went about it was illegal, unconstitutional and invalid. Van Staden should know this is so.
Paul Hoffman SC
Director, Accountability Now