Zuma’s creaky legislative edifice under siege from gravity

While a president, by definition, oversees and takes responsibility for the exercise of state power, how they do so differs widely.

Former president Thabo Mbeki was something of a control freak. He not only personally shaped all policy, but he also authorised every major exercise of state power and any government initiative of importance.

It was a trait mocked by his opponents and endured through gritted teeth by many of his African National Congress comrades. And it eventually played a large role in him being “recalled” as president.

Successor President Jacob Zuma promised his coup backers that he would be different. So he has been, with a vengeance, displaying only sporadic and superficial interest in the daily drudgery of governance.

This might not have been the disaster it has turned out to be, were it that Zuma had a coherent and clearly communicated strategic vision, with competent ministers to oversee the enabling detail. Unfortunately, he has neither.

The ship of state’s course is not set by map, compass and master mariner. It is determined by whatever prevailing wind or running sea the notoriously indecisive Zuma encounters.

And with a few exceptions, his crew was selected for loyalty rather than ability – if proof were needed, it has taken more than three years to suspend a national police commissioner who presided over a massacre – and are more hindrance than help. Their behaviour is determined by a combination of dated ideology and whimsy.

The whimsy stems from a lack of accountability and responsibility. The constraining ideological rigidity comes from the role that the SA Communist Party has in the Zuma administration – that of designated thinker.

All this makes for messy governance and is reflected in what in every democracy is a critical function, that of law making.

Our laws lay down the first template of our future. They should be wisely conceived and clearly crafted. That is not what is happening.

New SA legislation is often simply a knee-jerk reaction to a spasm of pressure within the ANC, as with the Protection of State Information Bill. Or else it’s an ill-thought out response to a perceived problem that turns out not be such a problem after all, as with the new visa regulations to counter child trafficking.

While the parliamentary passage of the secrecy Bill scratched the ANC’s law-making itch, it took no notice of whether the legislation could withstand a constitutional challenge. Eventually it dawned that it likely wouldn’t. Hence, it still languishes in Zuma’s heavily burdened tray, still not signed into law.

Not only the conceptualisation of much of proposed legislation is poor. The drafting, also, is execrable.

Trade and Industries Minister Rob Davies’ Licensing of Businesses Bill – at least in the version released for public comment – was littered with spelling and grammatical errors and illogical, incomprehensible garble. It read as if it were drafted by a first-year law student, using cut-and-paste from the collected works of Advocate Google.

The proposed Copyright Amendment Bill (CAB) is of similar ilk. As it stands, it amounts to a wholesale and probably constitutionally illegal appropriation by the state of intellectual property (IP). Unprecedented in the world, it provides for the ownership of all copyright held by individuals to automatically transfer to the state on their death.

This is either, depending on your political affiliation and orientation on life, a further sinister erosion of property rights, or else it is an indication of the Zuma administration’s boundless incompetence. The two are, of course, not mutually exclusive.

Whatever the motivation, CAB is conceptually flawed, poorly drafted and like the visa regulations, will have grievous consequences. Stellenbosch University’s Cobus Jooste described it in Legalbrief as “a grave misfortune and a study in amateur law-making”.

Another intellectual property expert responded thus: “What the Bill really does is debunk the old myth that IP is all about fostering innovation, creativity and all that stuff. What IP in SA is really all about is creating as much bureaucracy, administrative burden and sheltered employment as possible, and in the process stifling as much enterprise and economic activity as possible – a bit like the new visa regulations.”

And as with these visa regulations, which have been under “urgent review” for over a year following the body blow they delivered to foreign tourism, we will with CAB find that it is easier to pass bad laws than to scrap them. Although given the creaky legislative edifice that Zuma and his ministers have thrown up, reality, like gravity, is likely to bring it all crashing down before we have to worry overly.

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