IMAGINE this picture: the President of South Africa announces the names of a new crop of judges he has just appointed. Not unusual, you might say. But suppose this is the first the public has heard about the appointments. Suppose the open hearings, required by law, did not take place and there had been no opportunity for the legal community and the public to consider the candidates, make submissions to the interviewing committee for or against any candidate, or even to lobby for particular questions to be asked of any would-be judge. Suppose the media was entirely absent during the interviews, and the sometimes telling exchanges between candidates and interviewers passed without a single Tweet.
Can you imagine for a moment that such sleight of hand by the President would escape the notice and the attention of the public, of the legal community? Can you imagine the flagrant illegality would pass without an uproar? Not a chance.
Yet this is almost exactly what has happened with the appointment of National Arts Council board members. These are people who have become, with their appointment, among the most powerful in the South Africa arts scene because the council holds and distributes most public funding to the arts.
Their appointment and operating procedure is governed by the National Arts Council Act, a law drafted and championed by the department of arts and culture, whose officials – including the minister Nathi Mthethwa – should know its provisions intimately.
The council has a number of key functions that make this an extremely powerful arts body. Among these functions, it has the power to “determine which field of the arts should have preference for the purpose of support thereof”. It makes funds and grants and bursaries available to develop and promote the arts, and it advises the minister on matters concerning the arts, as well as carrying out research at the behest of the minister.
The law stipulates how many members must sit on the council, how they should be representative of the country geographically, and – which is at the heart of this gripe – how they must be appointed.
The law requires transparency and the involvement of the public at various phases – there is no “maybe” about these requirements. Nominations must be obtained from the public, for example. Following this an independent panel, appointed by the minister, compiles a short list from the nominations “after interviewing each nominee in public”. Again, this interview process is mandatory. The law also stipulates that “Any member of the public may object in writing to the nomination of any person”.
But alas, the requirement of transparency and public involvement has not been a feature in reality. Though there was a call for public nominations, the process was not followed correctly after that. There’s been blatant disregard for the other requirements of the law, and instead of scrapping the process and starting all over, the minister and his officials are trying to paper over some cracks in the hope that the building won’t fall down.
Late last year, members of the arts community began hearing rumours that certain people had been appointed to the council. Then they heard that the council had begun to operate and that some meetings had been held. This prompted inquiries to the minister: when had the public interviews been held?
His formal answer has been to acknowledge an “omission”, but, he added, “the Department is of the view that the omission can be remedied without undermining the integrity of the process thus far.”
His solution was for publication in newspapers “calling for the public to submit written comments and/or objections to candidates that have been recommended by the panel for appointment to serve on the council.”
“The public will be given 30 days to raise their objections or make their comments,” he said. “The remedy proposed above will go a long way in ensuring substantial compliance with the Act.”
This statement was followed by the publication, as promised, of a newspaper notice listing all those appointed to serve on the council for a term that would last from 1 September 2015 to 31 August 2019. The minister added, “Members of the public and the arts fraternity are hereby invited to make written comments and/or objections to the above appointments”, and a deadline of 30 March was set.
What he didn’t say, in the statement or the notice, is that the council members have all been formally appointed, have had at least one meeting, and have begun work. Exactly how, you might ask, will written comments, submitted by the public at this stage, have any impact on anything?
Among those listed as members of the council are people with a strong reputation in the arts field, but as one activist after another has explained, it’s not a question of who was appointed, but rather of the way in which the appointments have been made – covertly, without following the process set down in the law. Without regard to public participation as required by law in the form of public interviews. In short, illegally.
Arts activist Gita Pather dismissed as “almost frivolous” the minister’s attempt to rescue the appointments by retrospectively inviting written public comment. “He doesn’t seem to understand how grave is the infringement of the law.” Pather and others who share her concern fear this is a growing trend. They view the minister and his officials as “arrogant”, and say the department has a history of “breaking its own laws”. Pather had already requested the Public Protector to investigate an earlier example of an alleged breach of the law by the department of arts and culture – now she’s asked Thuli Madonsela to take up the question of the council appointments as well.
Prominent arts administrator Ismail Mahomed, who stressed he was speaking in his private capacity at this stage, said the flouting of the law by the department was typical of South Africa’s political leadership, under which such infringements were happening increasingly often.
Mahomed, artistic director of the National Arts Festival in Grahamstown, said the fact that there had been no broad-based response from the arts community in South Africa indicated the current state of the sector. “We have become largely apolitical or apathetic,” he said. In his view the troubling core issue highlighted by the impunity with which the department had acted, was that activism by a united diverse group of artists as in the past had “disappeared”.
This is a question of public life, not just art, he said. The fact that the arts media had not picked up the issue of the council’s unlawful appointment was also a reflection on arts journalism, which appeared to focus almost exclusively on reviewing productions at the expense of “engaging in the relationships between art, politics and public life”.
No doubt about it: the issue at stake here is a matter of legal principle as the process followed was flawed and illegal.
Perhaps, as Mahomed suggests, South African artists aren’t united enough to have acted yet. Or maybe there’s a reluctance to speak out, given the power over funding wielded by the council. But does that mean that lawyers should stand by? With the minister having publicly acknowledged an “omission” it could well be an open and shut matter, inviting review. And with a whole cast of potential applicants in the wings of this particular stage, it surely can’t be long until someone files an application to have the appointment of the entire council set aside.