South African companies are too often being given the cold shoulder in the rest of Africa, prompting the African National Congress (ANC) to call on the government to pass a law governing the conduct of local firms operating up north.

A new study reveals particular antipathy towards local companies operating in Kenya. The study by the South African Institute of International Affairs has recorded instances of “blatantly anti-South African sentiment” among Kenyans. In some cases citizens of the host country express resentment towards what they consider to be excessive South African investment. The study resulted from interviews conducted between 2005 and 2007 with South African companies involved in the Kenyan market, top Kenyan business people and policy analysts. It also involved representatives of government departments and donors.

Just in case South African businesses are to blame for giving the country a bad name, the ANC has decided not to take any chances. The party has proposed drawing up a code of business practice to regulate local companies doing business in the rest of Africa. In a resolution at the party’s 52nd conference last month, the ANC expressed support for such a code “which will need to be legislated and regulated without restricting the competitiveness of companies” in host countries.

The intention is for South African businesses to project the local experience of good practice in the countries where they have set up shop. The proposed code of conduct would include the prohibition of child labour and bribery, as well as commitment to recruiting local labour, to ensure skills transfer and to contribute to social responsibility programmes of the host country. However, the head of the institute’s business in Africa project, Neuma Grobbelaar, says regulations must be drawn up in consultation with the private sector after consideration of existing international codes of conduct.

“You have to ask the question, is this the responsibility of the South African government or the recipient government?” Grobbelaar says SA’s listed companies operating in the rest of the continent have already scored highly on business ethics. “Where I do have a problem is with very small unlisted companies,” she says. The study has reinforced the findings of a similar 2005 study conducted by the Organisation for Economic Co-operation and Development, which identified South African multinationals as “responsible and good investors”.

That survey looked at 127 listed companies from emerging markets. Grobbelaar says lapses in good conduct often arise where there is uneven application of the law or an overnight change of regulations in the host country. She cautions against the ANC’s proposed regulations which could penalise companies investing in risky areas. Some countries have higher political risks and unstable trade laws. The ANC resolution has come at a time when SA’s leadership role on the continent has bred criticism from some who feel the country used its political and military interventions to pave the way for business.

“When we look at negative perceptions we really have to look at what people are criticising,” says Grobbelaar. Perceptions range from very positive among consumers to very negative among competitors, and mixed is among governments. The reaction also tends to be sector and company specific. The expansion of South African companies in the past 13 years has made SA one of the largest investors on the continent but, says the institute’s study, Kenya has defied this trend, keeping South African conglomerates at arm’s length. It said Kenyans had “accused South African companies of being patronising, even arrogant, and also not wanting to work with local partners”.

The clash between Kenyan and South African companies peaked in the “beer wars” which South African Breweries lost to Kenyan Breweries. Other local conglomerates have also experienced difficulties in penetrating the Kenyan market. SA’s Metro Cash and Carry outlet in Kenya closed its doors in March 2005 after an eight-year operation that did not make a profit. Shoprite Checkers’ 120-plus outlets in 15 African countries accounted for only 12% of group turnover while “strong levels of competition” from established local businesses have reportedly been preventing it from opening any stores in Kenya.

Despite having achieved profitability two years ahead of schedule in 2002, cellphone company MTN Internat-ional has not succeeded in Kenya. The study’s author, Jodi Hudson, says notwithstanding excessive red tape, poor road conditions, the cost of energy, crime and political uncertainty, South African companies still see Kenya as an attractive investment and a springboard into east Africa.

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We might not all be law experts, but we fully understand the Constitution, because it is a product of public participation and represents the will of the people. We also expect the newly elected men and women of the ANC national executive committee to possess a minimum basic understanding of this supreme law of the land and to ensure that it is not undermined by anyone for political expediency. We have every right as citizens to ensure that the courts are responsible and to hold the National Prosecuting Authority (NPA) accountable.

The NPA has abused the judicial process and as a result the state is not entitled to carry on with prosecuting Zuma. The courts should set aside the case, not on its merits, but because continuing the prosecution would damage the integrity of the justice system. A judge has the power to dismiss a case if the defendant is unlikely to receive a fair trial. A court may also act where there is grave misconduct on the part of police, the executive or the prosecuting authority. The judiciary must have the respect and the support of the community it serves in order to properly administer criminal justice.

The courts should therefore intervene and demand that the NPA stop its oppressive behaviour. Zuma deserves a fair pre-trial process and a speedy trial, as guaranteed by the Constitution. Through its behaviour, the NPA has destroyed its chances of conviction on a “winnable case” and therefore Zuma cannot be allowed to be humiliated and projected as a common criminal. It took the NPA 15 months after Judge Msimang’s ruling to complete a draft indictment for instituting another prosecution against Zuma. This, in itself, suffices for the court to dismiss the case with prejudice, as justice delayed is justice denied.

The Public Protector has also been critical of the conduct and behavior of the NPA, damning Bulelani Ngcuka for his irresponsible utterances, which infringed on Zuma’s constitutional right to dignity and caused him to be prejudiced. What was strange was the sacking of Zuma as the deputy president of South Africa and Ngcuka being rewarded with the appointment of his wife to replace Zuma. As though this was not enough, the very same NPA embarked in a veiled effort to influence the outcome of the ANC’s Polokwane conference by constantly issuing media statements about Zuma’s pending charges. They did all this driven by arrogance and undermining the very same rule of law they are supposed to promote and protect only because they want to influence political outcomes.

The 13 additional charges against Zuma are in retaliation for the ruling by Judge Msimang. Simply because the NPA did not like the ruling does not give them the right to up the ante by filing charges that they would otherwise not have filed in the beginning. They want us to believe that their case matures like fine wine, which is ludicrous in law. There is no case against Zuma. The ANC NEC should demand that the court dismiss this case and instruct the NPA to stop its shenanigans. We members of the ANC are saying “Hands off Jacob Zuma” — and if he should be the next president of South Africa, let it be so. The NPA has no business whatsoever in our leadership preferences.

*Pule Malefane is a member of the ANC regional executive committee in Ekurhuleni

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The Kenya Editors’ Guild warned that it would mobilise media practitioners if the directive were not rescinded. The editors said they had many options, including court action and silent protest, to pressurise Government to withdraw the ban. On December 30, the Government suspended live broadcasts, a day after President Kibaki was declared the winner of last month’s disputed and so far discredited presidential election and sworn-in.

The Editors’ Guild said the ban on live coverage had badly affected media houses’ core business of informing society. Reading the statement in turns, the editors said the former Minister for Internal Security, Mr John Michuki, now Roads minister, exceeded his powers by prohibiting live broadcasting on radio and television. Mr Kipkoech Tanui, the Standard Group Managing Editor, Weekend Editions, said: “We must state categorically that the minister does not, in fact, have any such powers under the Communications Act Section 88. No such powers are given the minister as to ban live broadcasts.”

Mr Macharia Gaitho, the Guild chairman and an editor with the Nation Media Group, said at a critical period as the one Kenya was in, all channels of communication should be left open. Gaitho said divergent views must be heard to avoid suspicion or violation of people’s right to be informed. “We will use other means to make them (Government) understand, be it legal, mass protests or both,” he said. Meanwhile, the Media Council of Kenya has written to the Minister for Information, Mr Samuel Phogisio, over the ban.

Council chairman, Mr Wachira Waruru, said the ban was “illegal and out of tune with the powers invested on the minister as per Section 88 of the Communications Act 1998″. He said the suspension infringed on freedom of expression, a fundamental human right, and other guarantees in Section 79 of the Constitution. “The suspension undermines the mandate of the Media Council of Kenya constituted under the Media Act with the core objective of regulating the media,” he said.

The council resolved to exercise its mandate and ensure that journalists and the media upheld the Code of Ethics and contributed to peace-building and national reconciliation. The letter reads in part: “The council resolved to ask you, as the minister, to withdraw the suspension with immediate effect and instead channel complaints relating to professional conduct of the media to the council as per the law established.”
Macharia added that it was through the pressure of silent protests that draconian clauses in the Media Bill were repealed. Standard Deputy Managing Editor-Weekend Editions, Ms Jane Godia, said the ban was a blatant attempt to gag the media and curtail the freedom of expression as guaranteed by Section 79 of the Constitution.

“As journalists and editors, we are confident in the exercise of our professional judgment of what is fit or unfit to broadcast,” Godia said. She added: “We do not need Government guidance to do our work. If the Government is aggrieved, it should follow the right channels provided by the Media Council of Kenya Act.” Mr David Makali of the Media Institute said the media had lost revenue and service to its audience due to the ban. “As we speak, the fate of talk shows is unknown. Even the call in shows on radio stations are affected,” he said.

KTN’s Newsline, NTV’s Agenda Kenya, On the Spot and Kiss FM’s Crossfire have since been affected since the ban was enforced. “We have a humanitarian crisis, widespread abuse of human rights, mistrust, intolerance and in many parts of the country a virtual breakdown of the rule of law on a scale we have never seen before,” added Makali. They called on the Government to move fast end the political impasse, which has led to loss of lives, caused untold human suffering and damaged the image of a country long viewed as an island of peace and stability.

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