Commissions of Inquiry Predictably Impede Prosecutions

ANTHONY BUTLER: Zuma likely to share blame for collapse of state capture prosecutions

Rather than chiding the NPA’s head, the focus should be on former president’s decision about the timing of commission of inquiry

First published in Business Day and BUsinessLive

20 June 2025

SA citizens like to blame the national director of public prosecutions for the collapse of state capture prosecutions. They should rather take on the politicians who deliberately brought about this predictable outcome.

Critics stridently insist National Prosecuting Authority (NPA) head Shamila Batohi must stop making excuses and immediately prosecute potential miscreants flagged by the Zondo state capture commission. On Tuesday she even had to listen to demands for her resignation from an MK MP, Sibonelo Nomvalo, who called her “incompetent” at a parliamentary justice committee meeting.

This comes on top of a Centre for Development & Enterprise (CDE) report last week that called for a new NPA appointment mechanism. The CDE’s executive director, Ann Bernstein, pointedly observed that “without the right appointment process … the country risks repeating past mistakes”.

But rather than castigating the NPA’s head it might be more instructive to focus, as the British media have done this week, on political leaders’ decisions about the timing of statutory commissions of inquiry.

Immediately after scandals involving “grooming gangs” — groups of men who targeted vulnerable children for sexual abuse in Rotherham and other English towns a decade ago — there was a circumscribed independent inquiry (the Alexis Jay Report).

Authorities were concerned that a judicial inquiry would interfere with outstanding or possible prosecutions. Only this week did Prime Minister Keir Starmer — himself a former prosecuting agency head — institute a full public inquiry into the scandal.

In contrast, former president Jacob Zuma set up a commission to proceed in parallel with ongoing investigations, in full knowledge that statutory inquiries have legal powers that sit uncomfortably with criminal law. Zondo witnesses often received “Section 3(4)” undertakings under the Commissions Act, meaning they could claim privilege against self-incrimination during their testimony. Their compelled answers were generally inadmissible against them in a later criminal trial.

Zondo’s final report predictably created headaches for prosecutors around what lawyers call derivative use of evidence and tainted investigations. Defence lawyers can argue that prosecutors only discovered evidence because the accused was compelled to testify, which can be challenged as a violation of the constitutional right to a fair trial.

They can also argue that evidence was gathered in a process that would not have satisfied the requirements for criminal investigations, potentially opening the door to constitutional challenges. The Constitutional Court has not yet had an opportunity to clarify when derivative use of inquiry evidence is permissible and under what conditions compelled evidence contaminates a criminal case.

Judicial inquiries can certainly run alongside criminal investigations in a well-resourced justice system. Police and prosecution teams can be embedded alongside commissions, actively involved in separating out evidence safe to use in court. But the NPA had no resources or capacity to do this.

This means the NPA has to reconstruct criminal cases. Gathering fresh evidence independently of the commission’s work depends on new witness interviews, independent forensic audits, fresh financial records, and lawfully obtained search and seizure material, all of which requires human and financial resources the NPA still lacks.

This all illustrates a well-known “sequencing” finding from comparative law and politics: public inquiries, without strong prosecutorial institutions working in parallel from the start, make successful criminal prosecution harder rather than easier. This is why countries typically avoid running full public inquiries in parallel with criminal investigations.

When Zuma appointed the Zondo commission — albeit under heavy legal and political constraints over its terms of reference — we can assume he was fully aware how events would unfold. After all, he had the best possible legal advice — we were paying for it.

• Butler teaches public policy at the University of Cape Town.

May 11, 2025

Vulindlela Phase 2

ANTHONY BUTLER: Operation Vulindlela will have to remain lean and mean

First published in Business Day and BusinessLive

09 May 2025

The fanfare that surrounded Wednesday’s launch of the second phase of the hitherto low-key Operation Vulindlela shows how central the project has become to the credibility of President Cyril Ramaphosa’s otherwise faltering reform programme.

Vulindlela was born out of crisis, established in October 2020 as a joint initiative of the presidency and National Treasury to fast-track the delivery of reform in the midst of the Covid-19 pandemic. It had long been recognised that structural change was crucial to addressing the underlying causes of low economic growth, but Covid-19 broke down political and institutional barriers to change.

Initially focused on a narrow list of priorities with the greatest impact on growth and employment, Vulindlela aimed to “modernise and transform” — in truth to salvage — network industries including electricity, water, transport and digital communications, and to remake the visa regime to attract skills and promote tourism growth.

While departments and state-owned entities would still implement structural reforms, a dedicated unit bridging the presidency and the Treasury was created to monitor progress, provide “technical support” and generate clear recommendations for political principals to endorse.

The first phase went pretty well, though slowly, with reforms to enable private operators to access the freight network and participate in container terminal operations, a re-engineered water-use licence application system, auctioned high-demand spectrum, streamlined telecommunications infrastructure regulations and an updated visa system. All this resulted in somewhat cheaper data and fewer needlessly excluded skills, and unlocked investment in several sectors.

The government’s review of the first phase observed last year that there was “still a long way to go” in the performance of ports and the rail system, an assessment that applies across most of Operation Vulindlela’s areas of focus. Vulindlela will have to drive its existing initiatives — and prevent backsliding — as it moves on to fresh problems in a second phase that presents four key challenges.

The issues Ramaphosa has now placed on its plate include broad digital transformation, a technical quagmire that has defeated the most capable reformers in other countries.
Operation Vulindlela’s success has always hinged on private capital mobilisation. Without credible, predictable delivery frameworks — and faster impact timelines — economic benefits will remain limited. Sceptics believe bureaucratic delays will continue to undermine investor confidence in sectors like rail, ports, energy and digitalisation.
Operation Vulindlela can only be a supportive partner, and it will continue to be hampered by the lack of technical and managerial capacity in the wider civil service, conservative state-owned enterprises, water boards and other government agencies.
Finally, the politics will only get rougher as Operation Vulindlela’s scope of activities embraces local government and it becomes generally more politically exposed. Reform threatens entrenched interests and so brings pushback from unions, opposition parties and monopolistic entities resisting competition. Vulindlela may not be able to depend on political protection from the incoming president — or from their senior ministers — after December 2027.

Fiscal constraints, slow growth and a rising debt burden will continue to hamper Operation Vulindlela. Reforms requiring public financing or major contingent liabilities, including infrastructure investments, water system development and a local government reboot, will be delayed or downscaled.

Politics precludes any major shift from consumption to investment spending, but SA desperately needs to invest in the future. As is so often the case, crisis has made reform possible, but it has denied reformers the resources they need to realise their goals. This means Vulindlela will remain lean and mean, and we should salute its foot soldiers as they venture across new political minefields.

• Butler teaches public policy at the University of Cape Town.

April 25, 2025

Keep calm amid the dramas of coalition politics

Theatrics are par for the course in coalition politics

To maintain individual identities, coalition partners often stage public tiffs, even when compromises are being worked out behind the scenes

First published in BDLive

25 April 2025

To prevent future outbreaks of mass hysteria about the supposed demise of the government of national unity (GNU), citizens must embrace the inevitable theatricality of coalition politics.

Coalitions bring together parties with differing ideologies, constituencies and ambitions. To maintain their individual identities they often stage public disagreements, even when compromises are being worked out behind the scenes. It is a way of telling their base they haven’t sold out.

In coalitions, political actors often rely on symbolism and spectacle to assert leverage. Dramatic resignations, open letters or last-minute ultimatums are tactics meant to sway public opinion or pressure coalition partners. The news media spotlight moments of conflict, impassioned speechifying or bizarre alliances, while leadership rivalries, personal ambitions and factional dynamics get aired in public.

Ask the citizens of countries around the world who have lived for decades with coalition politics. In 1997, India’s United Front coalition government collapsed when the Congress Party withdrew support after an assassination scandal. Public attention focused on claims that a former coalition prime minister was obsessed with cows, spending more time at dairy events than in parliament. One Congress leader complained of government “run by cows, for cows, and only for cows”, while others described the coalition as the “bovine bloc”.

When Evo Morales became Bolivia’s president in 2006 he headed a broad coalition embracing leftist intellectuals, indigenous leaders, trade unionists and coca growers. Vice-president Álvaro García Linera, a former guerrilla and mathematician, described coalition meetings as “a zoo with llamas, jaguars and parrots all trying to direct traffic”. Internal disputes played out publicly on state television, sometimes ending in tears.

Meanwhile, after a disputed 2007 election violence had erupted across Kenya. A power-sharing deal was struck between president Mwai Kibaki and opposition leader Raila Odinga to restore stability. Odinga accepted the nonexecutive post of prime minister, joking that “I have taken half a loaf instead of going hungry”. The cabinet ballooned to 94 ministers and assistant ministers, one of whom, according to local wags, ran the “ministry of watching the other ministers”. Constant public bickering between Kibaki and Odinga made every cabinet meeting feel like a deranged family reunion.

In the world’s second-most advanced banana republic, the UK, the Liberal Democrats entered into coalition with the Conservatives in 2010, after promising repeatedly not to raise university tuition fees. As Lib Dem leader Nick Clegg toured the country making this pledge, his coalition negotiating team — which included the DA’s current coalition guru, Ryan Coetzee — were making contingency plans to abandon it. By the end of the year, fees had tripled. Clegg later released an apology, quickly rehashed in a spoof autotuned remix entitled “I’m sorry”, that charted on iTunes.

In Romania, a famous “coalition of the commode” exploded in 2021. Led by the National Liberal Party, it promised stability and good governance. Amid fallout from an infrastructure scandal, however, the education minister was accused of spending €350,000 renovating his ministry’s bathrooms, importing custom-made Italian tiles and a jacuzzi. This resulted in parties accusing each other of “bathtub populism” and “toilet-seat corruption”.

Coalition partners prepare for the next election from the moment the last one ends. They cannot help using theatrics to distance themselves from unpopular decisions or to take credit for popular ones, even if both were agreed upon collectively.

Theatricality helps parties signal their values, bargain for influence and manage diverse constituencies, all the while navigating the fragile architecture of shared governance.

Butler teaches public policy at the University of Cape Town.

March 28, 2025

The limits of political biography

ANTHONY BUTLER: Biographies leave much unsaid over presidential power

Complex interplay of factors that shape a president’s actions are mostly overlooked

First published in Business Day and BusinessLive

28 March 2025

Political biographers — I am a part-time member of this tribe because I once wrote a biography of Cyril Ramaphosa — run into a problem when their subject actually becomes state president.

This predicament is frustrating because the celebrity’s prospective or actual rise to the top job is often the reason the biography was written in the first place.

Biographies understandably elaborate on personality and formative experiences rather than the actual mechanisms of power in the presidential office. A focus on personal life narratives, influenced by biographical traditions and outmoded Freudian psychology, overlooks the complex interplay of factors that shape a president’s actions.

In contrast to regular party politicians, presidents occupy a unique position at the pinnacle of state power, navigating complex tensions as head of state and government, party leader and state manager, international representative and domestic politician, and disburser of formal and informal power (and money).

Add to this a labyrinth of classified documents that lie mouldering in databases or the basements of government departments, and inaccessible private interactions with powerful individuals at home and abroad, and it is little wonder few political biographies do more than scratch the surface of presidential power. All we get is the illusion that we have been transported into the mind of the leader as he sat behind the presidential desk and pondered the great decisions of state.

This challenge is extreme regarding Nelson Mandela. We have now been told an extraordinary range of things that we really do not want to know — about his wives and relationships, Communist Party dalliances, intermittent Methodism and the way he polished his shoes. But little is known about how he actually operated as state president. For that we have to rely on thinly detailed chapters in biographies, and an extremely generous book from Mandla Langa assembled from notes and speeches Mandela left behind.

This is of some practical importance. As Roger Southall notes in his thought-provoking study Smuts and Mandela, many younger South Africans believe Mandela “sold out” to white monopoly capital, and that “his democracy has proved to be a sham”, in which “the black majority is little better off than it was under apartheid”.

The instinct of many scholars has been to rally round Mandela, explain the context in which his decisions were taken, and justify the compromises that had to be struck at that time. This defensive approach is a mistake.

Mandela “improvised a nation”, as one academic brilliantly observed, through simple yet powerful gestures that reached beyond political elites to ordinary people. His primary goal as president was to avoid debilitating racial war and promote racial reconciliation — a commendably coherent and clear objective, but one that may have been entirely misconceived.

Though Mandela was extraordinarily effective in terms of symbolic leadership, he lacked engagement with the practicalities of governing. He also failed to confront the HIV/Aids crisis effectively — on Langa’s account because of his concern about the electoral costs of speaking out — and instead exercised leadership where it was not needed, for example backing school feeding schemes to which nobody was opposed.

In resolving the ANC’s funding crisis he tolerated the arms deal, perhaps because of the nominal party funding element it involved, solicited foreign donations from authoritarian countries, and accepted personal favours for himself and his family. In these ways Mandela laid some of the groundwork for the problematic relationship between money, politics and personal gain that became more pronounced under his successors.

• Butler teaches public policy at the University of Cape Town. His new book, ‘Presidential Power’ will be published later this year. Readers who may have personal photographs that reveal the character of any SA president can contact him on anthony.butler@uct.ac.za to discuss their possible inclusion in the book.

October 18, 2024December 27, 2024

The second termer’s turn to legacy politics

ANTHONY BUTLER: Second term for presidents is best and worst of times

While finally in command, second-term leaders also know their time is running out

First published in Business Day

18 October 2024

President Cyril Ramaphosa. File photo: GCIS

For a president the start of a second term is the best of times. But it is also the worst of times.

The first termer is on a learning curve. Lacking experience, they are surrounded by the appointees of their predecessor, hemmed in by policy and budget frameworks set by others, and obliged to campaign in a series of elections in which they are a public punchbag.

It is only after re-election by the party, and then 18 months later by the National Assembly, that a president becomes more or less invulnerable to removal. The second-termer is more experienced, surrounded by a chosen team, confident in cabinet and media manipulation, and adroit in deployment of informal institutions.

However, while finally in command at the apex of national power, second-term leaders also know their time is running out. Factions start to consolidate around potential successors. Initially fluid groupings organise around proxy issues and disrupt the government machine.

Media attention is attracted not by the president’s words but by those of the contenders for their office. Newspapers run extended pieces about ANC succession politics, and soon a political journalist declares the president a “lame duck”.

This cycle leads most presidents to become obsessed with their “legacy”. First, they yearn for a “concrete legacy” of tangible accomplishments. In some political systems this is a moment of real danger. Ageing “strongman” leaders such as Russia’s Vladimir Putin or China’s Xi Jinping conceive invasion or the expansion of empire as their legacy to their countries.

In more democratic societies presidents leave concrete legislative or governance legacies by signing all kinds of well-meaning policy changes. They are always aware though, that a successor can equally easily erase these accomplishments.

A second legacy ambition concerns the control of presidential succession, which offers a chimera of enduring direct power. Authoritarian-minded presidents often decide they should succeed themselves. Even in SA’s constitutional democracy, with its parliamentary system and two-term limit for presidents, Thabo Mbeki and his retinue fantasised in 2007 that they could retain the ANC presidency, install a puppet state president, and continue to run the country from Luthuli House.

An embarrassing — perhaps even pitiful — variant of this legacy ambition arises when the president discovers that their favourite child turns out to be the best person to run the country after they are gone.

A third presidential ambition — we might say the desire for a soft legacy — concerns an intangible and persistent influence that continues to shape politics after the leader has gone.

In SA we tend to think in terms of the “foundations” beloved of our retired political leaders. These purport to pursue particular political philosophies, but in reality serve primarily as tax avoidance vehicles for party veterans.

The less tangible sources of influence that endure even after the leader retires are harder to create but more enduring, because they are based on memories enshrined in the minds of public officials and wider populations.

To take one famous example, US president Franklin Roosevelt introduced programmes in the New Deal that continue to shape debate about entitlement programmes in his country.

Nelson Mandela was an ineffectual president in most respects, but he left behind a set of values and perspectives about the creation of a nation around which contemporary political argument in SA still turns.

The enduring legacy of a political leader resides not in the laws they fashion or in the successors they try to impose. Rather it turns on whether they express more fundamental ideas and arguments that are revisited and reworked by those engaged in politics in future.

• Butler teaches public policy at the University of Cape Town.