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Protect South Africa's Democracy | Remove Mr Zuma as President | Uphold Madiba's Values

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Open Letter to the Chief Justice of South Africa’s Constitutional Court

Sunday, 09th April 2017

Office of the Chief Justice

Constitutional Court of South Africa

Honourable Chief Justice Mogoeng Mogoeng,

Judicial Innovation | Secure South Africa's Democracy | Constitution | Parliament

Is there a way of foreseeing when a Constitution has served its purpose by the internal volatility of a country? If so, the writing is on the wall.

Since 1994 South Africa’s Constitution (from draft form), has carried the nation from a racial autocracy to a non-racial democracy. Being one of the finest in the world, it was destined to be in the front-line of pushing and protecting boundaries of the 20th century to secure our Republic of threats, challenges and globally negative socio-economic trends.

Left in its current form, within the 21st century context of the digital, information age, South Africa’s legal foundation is no longer secure and the socio-economic ramifications are far-reaching unless Ubuntu becomes the central axis to our digital jurisprudence.

For example, the Constitution makes no provision for ‘virtual’ co-shared property ownership, the use of data-backed blockchain currencies, brain chip identification and human enhancement, law-breaking by remote assistants (such as Facebook’s Messenger), labour rights in Industry 4.0 and the effect the Internet of Things (IoT) will have on ‘radical economic transformation’.

As a country with one of the highest rates of mobile absorption in the world, the Republic is vulnerable to ‘digital capture’ by foreign, remote, artificial intelligence and hackers. Rights in the Information Age are unbounded by geographical borders and value is rising faster in phygital, digital, virtual and universal space than in the natural or built environment where resources are depleting, hard infrastructure aging and geo-politics becoming more complex. I will expand more on this further down below.

I wish to begin by thanking the Office of the Chief Justice for reaching out to the Speaker of Parliament (and Chairperson of the ANC), Mrs Baleka Mbete to guide her good counsel with opposition leaders and her party on the proposed motion of no confidence expressed by the opposition for Mr Zuma. I must especially thank her for assuring the media, citizens and the ANC of her best effort in the coming 10 days as we await her pronouncement of 18th April. Ethical leaders act as a force for good by action, word, deed and spirit aligned moment by moment by a central values axis; not only when situations arise that suits an agenda; and especially where the implications and consequence weigh heavily against personal allegiances and loyalties.

The Constitutional Matters I wish to raise are as follows:

1.       The need to allow a secret ballot to be used in motions involving the President

2.       The need to curtail Presidential powers and mandate the deputy President as ‘prime’ minister of the cabinet to lead government business

3.       The need to release the current President

4.       The need to review the South African Constitution to protect the rights of citizens in the digital political-economy– and create traction for the National Development Plan to flow logically therefrom

5.       The need for a systematically review of South Africa’s IP and energy legislation to unlock sleeping value in our indigenous knowledge, mineral resources, social and broadcasting media, digital information, forms of data currency used for labour remuneration, property ownership by Blockchain, copyright, design and patent rights in relation to Africa’s 100 000 year design innovation tradition as per archaeological evidence at Blombos Caves.   

My intention for bringing these matters before the Chief Justice is that the Constitutional Court has the power to review all government policies and actions even to subject the Constitution itself to a review, especially when the President fails to carry out his obligation in this regard.

As one of 143 qualified women futurists in the world, it is my professional duty and responsibility to life as an African to bring these matters to your attention. I act (1) in the best interest of my soul (2) to serve the public interest (3) especially on behalf of business leaders and government ministers who cannot at this time (4) as well as marginalised groups of civil society caught in a low level development mouse-trap.

Today, I especially applaud the efforts of active citizens for helping to deepen our democracy by taking to the streets in protest, camping outside Ministers homes, petitioning online and via social and mass media. We must purge our country of corruption and racial toxicity with the poverty and inequality that persists 24 years on.

Madiba showed us we have nothing to fear but our own greatness. In the words of Mr Bill Clinton, every time Madiba walked into a room, we all felt a little bigger. We all want to stand up. We all want to cheer because we’d like to be him on our best day. 

But sadly, today, if South Africa’s Government was accountable to its civic shareholders like a business, it would be declared bankrupt (junk status). Financial shareholders would express a vote of non-confidence in the CEO and Chairman and the Board would be dissolved and placed under Judicial Management with a turnaround leader. If I learned anything during my 20 years of service to PRISA (The Institute of Public Relations and Communication Management), we cannot ‘shot left’ like a taxi when trying to steer the Titanic. It will topple over. And if you ever find yourself riding a tiger in a virtual Jurassic Park someday, don’t hold on too close or too far from its head – you’ll get mauled both ways. Like there needs to be a good rhythm between your riding skill and the animal’s power; like the running of a business is a balance of focus, flow and chi.   

In the corporate world, the Chief Executive Officer is fired for using company funds to furnish his home, especially if the company also incurs massive losses that year. Nepotism, corruption, abuse of power in board meetings by laughing while receiving feedback from colleagues, sexual harassment, lying to regulators, cold-blooded killing of striking workers are serious offences in terms of the Labour Relations Act.

The Human Resource Director could be fired because the CEO gave himself an undue increase, for the lack of sound succession planning, poor staff morale, high staff turnover rate (especially burnout of directors and managers), lack of proper performance management measures, inadequate training, death of striking employees, death of psychiatrically unwell employees and the failure to attract and retain the right talent fit - in line with the business' strategic plan.

The Chief Financial Officer could be fired for poor cash flow, municipal debtors beyond 90 days, tampering with procurement tenders, price fixing, non-payment of suppliers and displaying gross negligence in his fiduciary duty to report on these matters timeously to shareholders, and in a transparent way.

The Chief Information Officer could.be fired for a lack of intelligent foresight and inability to read ‘big data’ analytics, the rising internal circulation of fakes news, mis and dis-information widely leaked among customers on social media, insufficient firewalls to hold up against hacking by competitors, theft of computers from the boardroom with classified information, loss of valuable data and concealing information from shareholders.

The Chief Operating Officer would be fired for binding shareholders to unsustainable production and supply chain practices, investing in old technology, gambling with worker’s pension funds to lease sub-standard equipment, refusing to co-operate with a regulator, lack of a business operating plan,  

The Brand Marketing Director would be fired for running campaigns in the wrong markets, the decline in brand equity, negative stakeholder feedback, lack of proper internal communication and messaging, false advertising, negative media publicity and lack of digital analytics and a sound Customer Relationship Management system.

If the majority shareholder had appointed its own President as both Chairman of the Board of South Africa and its CEO (as the situation stands) shareholders would be protesting for him / her to be recalled. The Johannesburg Stock Exchange (JSE) would suspend it from trading and banks would call in their loans as they did with the Gupta Family.

The last remaining position – would be the Company Secretary who quietly took down the notes in board meetings, typed up the records and followed through on the process with shareholders, the JSE and lawyers. Within the context of our country, this is the Honorable Chief Justice; which brings me to the first three matters I raised earlier i.e. allowing a secret ballot, curtailing the President’s power and releasing Mr Zuma from service.

 1.     The Matter

I wish to lay a complaint against Mr Zuma, who, as President of South Africa consistently fails in his duty to uphold the Constitution. I ask that steps be taken by the ANC to recall him, Madam Speaker encourages him to step down, curtail his power or remove him according to the Constitution. This will contain the current national crisis from escalating into a state of emergency and spilling over into our SADC neighbours, continent and global community.

 Mr Jacob Zuma has failed to uphold the legal foundation upon which our Republic exists and each day he remains in office puts the country at greater risk. The two-thirds majority of the ANC in Parliament places its members in a precarious position of feeling / being seen as disloyal to the ANC and our dead MK Comrades if they vote against Mr Zuma. Greater protection is needed by way of a secret ballot – for the process to be free and fair. In addition, he has used his vast Presidential powers to make a sandpit of the country and build castles for himself like Nkandla, instead of for the people. This could be stopped by reducing his power and increasing the responsibility of the deputy President to serve as a Chief Operating Officer or prime minister of Cabinet.

 2.       Supporting evidence

a.       The Constitutional Court has already ruled that Mr Zuma failed to fulfill the obligations the Constitution imposed upon him under Oath in his response to the Public Protector’s Nkandla Report. Mr Zuma lied and used his special privileges to stall and redirect the matter in order to protect himself; at the expense of his Country, Parliament, Government Ministers and Citizens. 

b.       Mr Zuma failed to admit to the SASSA crisis which threatened the livelihood of 17 million beneficiaries of social grants due to corruption and mis-management in terms of the Public Finance Management Act within the Ministry of Social Development currently led by Mrs Bathobile Dlamini, the leader of the ANC Women’s League.

c.       This follows on from the death of 94 psychiatric patients, the killing of Marikana mineworkers by the South African Police Service and growing social instability due to racial polarisation.

d.       The country is in ‘state capture’ and at risk of ‘digital capture’ because of gross negligence by Mr Zuma who unduly exposed the country to international counter-forces, security risks, currency volatility and economic losses as per the recent downgrading of the economy which has an almost zero growth rate.

e.       He has caused South Africa to lose face among the international political community notably in the matters involving Omar al Basher, firing Mr Pravin Gordhan and Nr Nhlanhla Nene, his manner of cabinet reshuffles, the Guptagate saga and other 'generally corrupt relationships'.

f.         His contempt for legislative, executive and judicial processes has become part of the DNA gene structure of South Africa’s leadership style in Government Departments and State Owned Enterprises. The precedence he sets as President falls far short of the mark of excellence which our late former President Mr Nelson Mandela passed on to Mr Thabo Mbeki.

g.       As per parliamentary media footage, Mr Zuma makes a blatant mockery of Parliament knowing that the Constitution in its current form supports him to be the power behind the Speaker’s throne. Therefore he uses Madam Speakers’ allegiance to the ANC to his own advantage.

h.       Each day Mr Zuma remains in office, billions of Rands of taxpayers money, thousands of working ‘man’-hours and valuable state resources are re-channelized from proper Government business (i.e. creating an enabling environment for a peaceful, prosperous, healthy, powerful, secure and creative nation in which citizens can fulfil our highest potential.

i.         As an African woman, I find his patriarchal, Verwoerd-KGB leadership style unbecoming in our post-colonial society. It is not right for him to superimpose this upon Africa's matriarchal tradition as should be more upheld by the ANC Women’s League such that it cascades into more young ladies active within the ANC Youth League. Sadly, this is not the case and here, on this point, I note Mr Julius Malema’s stronger feminist position within the Economic Freedom Fighters whose female and male members have spoken out for our dead girls - Fezekile Ntsukela Kuzwayo (Kwezi), Franziska Blöchliger, and Sinoxolo Mafevuka. Every day Mr Zuma is left in office, more youth are dying on the Cape Flats, in our Townships and Cities due to rape, abuse, gang wars, drugs and alcohol abuse, taxi violence and suicide. Here, I also note the efforts of the former leader of the opposition, Mrs Helen Zille and the Mayor of Cape Town, Mrs Patricia De Lille for the resilience, courage and focused way they deal with gender issues – along with role models like Dr Mamphela Rampele, Dr Danisa Baloyi, Mrs Phangisile Mtshali, Mrs Wendy Luhabe, Mrs Pramilla Vassen, and the late Dr Lidia Vosloo – all of whom I was blessed to work with over the years.

3.       Efforts to address the matter  

If Dr Frederick van Zyl Slabbert was alive today, this letter would have his full support as a wise mentor and respected leader I served for 7 years during his tenure as Chairperson of Adcorp Holdings and co-chair of the International Marketing Council of South Africa. Van Zyl was fond of asking me about the things that kept me awake at night, knowing that when he dealt with these, I gave more focus to things that kept him awake; notably the socio-economic progression of South Africa into a free, just and equitable society.

These days, it is the voices of such great women and men, on whose shoulders I was blessed to stand and see the future, that have kept me awake at night. And only by writing to you and opening my heart, might I have the peace to take some rest. Now, partially disabled and terminally ill, I humbly submit this letter as my last service to my Country before undergoing a bone marrow transplant abroad. Sadly, South Africa has no specialist expertise in systemic sclerosis, one of the ten rarest auto-immune diseases in the world. Yet we performed the world’s first heart transplant! 

Prof Phillip Spies, one of our country’s first futurists taught me, that if we take away all that’s bad in the world, we still won’t be left with good unless we have wisdom to make better choices - or things will go bad again. Today, the future of our youth depends on your leadership as Chief Justice to exercise your power to free our citizens | trapped beneath a ceiling of Mr Zuma's competency and the ongoing battle of ideas between guardians of the old and warriors for a new ANC.  

 Van Zyl taught me to honour the Constitution as the sharpest instrument we have to punctuate the aorta of the issue in order to stop our nation’s heart bleeding.

This brings me to the matter of Judicial Innovation raised as points 4 and 5 which calls for a review of:

·          the Constitution 

·          digital jurisprudence | legislation around digital and intellectual property rights, indigenous knowledge rights, design marks and patents owned by the SABS

 Having worked as an innovation thoughtleader to some of the world’s most admired brands, a review of the South African Constitution will be a social innovation not only for our country but the world at large. It needs this kind of intellectual heroism to put the country back on course. 

Presidents are being impeached, elections are remotely rigged, hackers are publishing fake news and accessing private information. While we all need stronger protection against foreign invasions, waves of refugees are landing on European shores, like our SADC neighbours are crossing our borders in droves daily and changing township dynamics. It is at times like these we confront the contradictions between Africa’s Ubuntu philosophy, capitalism’s economic realities and religious rhetoric in our Constitution.

As I write, Russia and America are lining up to war over land and resources in the Middle East that is not their business – as we watch children dying who are no less our own, even if we worship God by a different name.

My late Father, Ivan O’Brien taught me that we are human beings having a spiritual experience. And when we reflect and take stock of ourselves to reconcile our actions with our thought, word and deed, we will take personal and collective responsibility for the state of our nation since I am because you are.

4.     Way forward

It is in this spirit of Ubuntu I pray we move forward. I call upon the Office of the Chief Justice to set the process in motion for Members of the National Assembly of the South African Parliament (especially the assembly of the ANC in Parliament) to make the right choices regarding the President and to review the Constitution chapter by chapter while re-aligning relevant strategic frameworks to harmonise with local and international legislation. By way of example, please allow me to summarise a few points for the first four chapters:

 

Preamble

·          This needs to encourage the spirit of active citizenship through Ubuntu to deepen our democracy in a manner that provides for social and digital innovation with ethical leadership to deal with challenges of the 21st century.

 

Chapter One |

·          The Republic of South Africa includes geographically defined natural land and air space, built technological environments in phygital and digital worlds as well as the virtual reality thereof.

·          Is artificial life and artificial intelligence included / excluded from having citizens status?

·          Foreign citizens and refugees who enjoy South Africa’s social privileges should provide for the furthering of their languages (such as French, Chinese, Portuguese, and German etc.) via their municipalities (or private schools?)

·          Is computational language code deemed a language or a mathematical equation? If the latter, then language must be redefined in accordance with 21st century conceptual shifts?

Chapter Two| Bill of Rights

·          In the Bill of Rights: – is artificial intelligence, aliens and human brand robots natural or juristic persons?

·          Are humans equal to artificial life / humanoid robots and protected with equal benefits before the law? What if they produce ‘fake news’? Can they be tried before a court and convicted with the same rehabilitation measures used for humans? Do they have a right to life? Dignity? The right to privacy and freedom of religion, belief, opinion, expression, association, rights to housing and political voting?

·          Who is ‘everyone’ – what is defined as a human being or non-human entity?

·          In the context of Industry 4.0, what professions may a humanoid robots hold? Do they enjoy same labour relations rights as workers?

·          If no-one is to be deprived of property, how might this work with digital, intellectual and space property?

·          What benefits does artificial life, remote assistants and artificial intelligence enjoy in South Africa in terms of access healthcare, education, food, safety and security?

·          Are cloned children or those born outside the womb also classified the same as human children born naturally? Might there be a registry of artificial intelligence?

·          Who is entitled to access the big data intelligence collected by surveillance media such as Facebook’s photographic facial recognition media used by xx millions of our citizens?

·          What process is to be followed to arrest artificial intelligence, remote assistants, Industry 4.0 machines linked to remote internet users outside of South Africa (such as election hackers) and who might judge their trials, in a separate Court or under which laws? Their country of manufacture or coding?

·          More clarity is required around the detention of refugees, aliens and artificial life? Are they treated the same as natural citizens of the country? As in placed in the same detention cells etc.?

Chapter Three | Principles of Co-operative Governance

·          The 21st century governance challenge is for collective leadership to seek win / win cooperation among independent stakeholders with different interests to co-produce a larger social good.

·          Will South Africa transition to e-Governance and if so, what technology, skills and support might Parliamentarians need to serve and perform their duties remotely? Might national assembly only happen in the natural world? What about Portfolio Committee meetings by Skype? What protections are in place to secure e- voting against hacking like the USA?

·          A key challenge to governance in the information age is securing the co-operation of groupings with different interests to work together for the good of the whole or everyone loses in the end. Systemic co-operative strategy, as the ethos of the information age, especially in sharing and collaborative economies, should be at the heart of those who govern our nation, business and social institutions.

·          Another governance challenge of the information age is that corporations and industries run across nation states and regions and refuse to be governed by them. Cooperative leadership on a large scale will be required to reconcile diverse stakeholder interests.  Who better than us to lead this and gift it to the world?

 

Chapter Four | Parliament

·          If the national legislative authority confers on the national assembly the power to amend the Constitution, should a President overturn such amendments? We really need to get out of this kind of legalese that creates vicious cycles of ‘inaction in action’.

·          The current Madam Speaker is biased in her leadership of the National Assembly and she should recuse herself when conflicts of interest are apparent between her allegiance to the ANC as its Chairperson and her allegiance to our Constitution. I concur with the leader of the Opposition, Mr Mmusi Maimane that this “is part of the problem’. No bull walks itself to castration.

·          Our young democracy, indeed the world, needs a more conciliatory style of politics – not the hard, win-lose pattern learned and inherited from apartheid's oppressors. This is Africa’s time to lead a new pathway of hope. The time for brinkmanship is over, especially between immature political parties who spend more time fighting for power in the High Court than in Parliament.

·          Our citizens need to be less ‘slacktivists’ and more consciously aware of their rights, think critically while reading media reports, act wisely and become less naive if we want our dreams to not get written off as collateral damage by powerful people in politics whom we entrust our power.

·          Judicial independence is fundamental to any democracy, as you well know and I was pleased to read deputy Chief Justice nominee Ray Zondo's view that ‘it is not about popularity. I must take a decision that, in my view, accords with the Constitution and the law. And if that means I won’t be popular with certain people or I lose some friends in politics, or the media, or anywhere, that is just the job.’ We need more Government citizens to move in this direction.   

History is peppered with critical moments in time when circumstances came together to present an opportunity for leaders to combine human potential with political will towards a common vision that inspires followers and furthers humanity’s evolution.

In my minds-eye, I can imagine a future where South Africa someday opens a poverty museum in space for tourists to experience how Africans lived at the end of the 20th century and changed the game in the 21st.  

Thank you for the opportunity to express myself freely. The window of greatness is open to our nation. Let’s all stop looking in the rear view mirror as we go forward. Amandla!

Sincerely,

Merlegrace O’Brien

Please follow this link to the www.change.org online petition and see how many citizens have signed this letter with me …  

https://www.change.org/p/chief-justice-of-south-africa-protect-south-africa-s-democracy-constitution-parliament/edit

 cc:

Madam Speaker, NCOP, NA, ANC, COSATU, SACP, Opposition Leaders, Public Protector, Traditional Leaders

 Original letter | posted 01st April 2017

Please remove Mr Zuma as President of South Africa ...

1. The declining mental, physical and emotional health of government officials and their portfolios are leading to growing instability and organisational turbulence in the functioning of state departments and administrations

2. He has seriously misconducted himself in the oversight of natural resources | state entities (Eskom, SAA, etc), board and state funds so as to deprive Black miners and State pension fund beneficiaries of investment security in public enterprises  

3 He has abused his official privileges for personal self enrichment through corruption | misinformation and presenting false evidence for state organs to act upon knowingly - thereby creating an irrevocable breakdown in trust as well as erosion of the values enshrined in the constitution - dignity (SASSA grant payments), equality (gender | rape ) and freedom (closing off options & depriving youth of environmental and energy resources as per section 24.)

4. is incompetent to perform the functions of office as his best intellectual & physical efforts having failed to secure the nation's economic and social development according to a sound plan / strategic framework over last 7 years of widespread corruption, economic decline and poor decision-making in executive appointments and as a result the entire country is kept beneath his ceiling of (in)competency.

5. A motion of no confidence is being called by leaders of political parties,business, labour and civic leaders, religious ministers, traditional healers, elders, youth and broad-based active citizens movements - seeking his immediate removal in terms of section 89 of the constitution; subsections 1 (a,b and c). A secret ballot must be approved for the process to be free and fair. 

Furthermore, and notwithstanding the above | we hereby invoke the powers afforded to us in Section 102 of the constitution which permits the President to be removed from office through a Parliament vote.

We invoke section 91.4 by calling for the immediate appointment of a 'prime' minister to lead executive, legislature and judiciary governance of the nation's business within the national assembly so as to restore our Sovereignty from state capture, trust in Parliament, the Constitution and State entities and thereby prevent the President from alteration of further legislation, including the Constitution as per how his will dictates, even at the expense of the African National Congress and legacy of its leaders like Mr Nelson Mandela | Mr Oliver Tambo | Mt Govan Mbeki | Mr Ahmed Kathrada | Mr Walter Sisulu et. al.

Help us protect our democracy and secure the future of our country on the ethical leadership values for which many of our loved ones died.

God bless South Africa 

Sincerely,

Merlegrace O'Brien

 

 



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