Governance Watch

High noon in war for soul of constitution and ANC

Judiciary sucked into Zuma wars
Judiciary.jpg

A war for the soul of the South African constitution and for that of the governing ANC has entered a new and critical phase. New battlefields opened on various fronts last week, from the party political to formal governance institutions – including from within the judiciary.

With the war for control over the state flaring up on so many fronts, some of them new, no end to it seems in sight in the immediate future. The final battle is likely to come with the scheduled general election of 2019 – that is, if the constitution as it has functioned until now, and/or the ANC, survives until then.

In the extremely confusing drama that has developed since the Public Protector’s (PP) 2013 report on the Nkandla upgrades to his private residence, President Jacob Zuma’s battle for survival as president of the country and the governing African National Congress, still dominates ‘war reports’.

Judiciary a new front?

However, in the process an indication of probably a more important, in the bigger scheme of things, ‘front’ developing, went by almost unnoticed. The judiciary, thus far mostly seen as an arbitrator of last resort might start to rebel.

Rejecting, with cost, an ‘urgent’ application by the Helen Suzman Foundation (HSF) and Freedom Under Law (FUL) to force President Zuma urgently to suspend National Director of Public Prosecutions (NPA) Shaun Abrahams and two other top NPA officials, Gauteng Judge President Dunstan Mlambo, in the High Court in Pretoria, inter alia said on behalf of a full bench of three judges:

  • “We hold a strong view that urgent relief, and we are supported in this regard by ample judicial authority, is granted in special circumstances in matters where a proper case for such relief is made out. The case before us deals with very important constitutional issues and that are in the public interest and in the public domain”;
  • “It is in our view, not the type of matter, particularly the facts and issues it raises, that can be properly dealt with within the exigencies of the urgent court where there is no adequate opportunity for judges to reflect on the issues raised and to reach sound conclusions and judgements”;
  • “The relief sought has the potential for this court to stray into the executive terrain which could, if not properly considered, violate the separation of arms doctrine. This could have the judiciary straying into the terrain of the executive”; and
  • “We should also guard, as a court, against creating precedence where, based on insufficient grounds and inadequate foundation, to encourage ordinary citizens to use the courts as a platform to dictate to the executive how it should do its work.” (Our emphasis.)

It would seem that at least some senior members of the judiciary are becoming weary of the present trend of using the courts as a platform for essentially political battles and political campaigns.

In the meantime, the Democratic Alliance (DA) announced plans to submit a Constitutional Amendment Bill to parliament to ensure that parliament appoints and removes the NDPP to hold him or her properly accountable. This is in line with arguments by some commentators that the constitution, as it stands, concentrates too much discretionary power in the hands of the president.

Ironically, the president has also seized onto the issue of the separation of powers as part of his strategy to protect himself from the implications of the state capture report by previous PP, Thuli Madonsela. He announced last week that he will take the report on review, arguing that the remedial action she dictated of a Judicial Commission of Inquiry “to be selected by the chief justice,” encroaches on his functions as president.

The delay this will deliver to President Zuma, takes matters to March next year, until when he, by law has by law available to institute the review.

Whether he or the chief justice appoints the commission, it then has 180 days to complete its investigation.

University of Cape Town Constitutional law expert Professor Pierre de Vos argues that President Zuma has a plausible argument.

Indicating how technical it might become, further assisting President Zuma to delay the process, Madonsela, in her response argued that on her Nkandla report Zuma himself argued in relation to the EFF’s Nkandla court challenge, that he could not be seen to act as the judge and jury in a matter affecting him.

That is why she instructed him to let the chief justice select the commission’s chair. In essence she makes a distinction between the function of ‘selection’ and ‘appointment’.

New Public Protector

In the meantime it has transpired that the new PP, Busisiwe Mkhwebane, has  forwarded the State of Capture report for investigation to the priority crimes unit (Hawks), as well as to the National Prosecuting Authority (NPA) – on the very day the report was released.

While the DA and other opposition parties welcomed the Hawks’ ‘investigation’, it just might turn out to be misplaced opportunistic political point scoring. When the time comes for a commission of inquiry, it might just give President Zuma grounds to argue that the Hawks (who are by the same parties being accused to be in Zuma’s pocket) to finish their investigation aid the first before the commission can start its work.

PP Mkhwebane also found herself embroiled in another related controversy last week. It  transpired that she has laid criminal charges against Madonsela for releasing a recording of her question-and-answer session with the president in the run-up to completing her report. She laid the charge after receiving an enquiry about the matter from the president.

In her statement about the matter Mkhwebane said: “A case has been opened with the Brooklyn police station because there is an investigation that needs to happen whether the leakage happened in violation of section 7(2) of the Public Protector Act because any information which is relevant to the investigation can only be made public with the permission of the public protector.”

Again, small technicalities come into play. Fact is, for instance, that a transcript of the session was released with the report and the information was already in the public domain. The recording constitutes merely the release of the ‘information’ in a different format.

Real battle on the political front

The matters referred to so far in this article just scratch the surface on the legal front. From this alone it is clear, that it is unlikely that Mr Zuma could be removed on legal grounds in the near, or even medium, term.

On this front his battle is for time to develop ways to protect himself after his term in office ends in 2019.

The real battle is fought on the political front, and more particularly inside the ANC and its governing alliance partners. That the battle, extremely complicated and unpredictable as it is, is the one to watch.

On that front, my personal money, so to speak, is on the so-called ANC veterans and the party’s integrity commission who will “meet” with Zuma in the coming month, because it involves people like former National Assembly speaker Frene Ginwala.

I had the privilege during the first four years of the post-1994 parliament to serve as a parliamentary whip under her as speaker. I always found her to be a person of exceptional integrity and fairness.

Looking at the battle lines that have developed in the ANC, I’m strongly convinced the ANC, as we have got to know it, will not survive in one piece. We are on our way to a new dispensation – probably a coalition government, some of the components of which are still to be formed.

by Piet Coetzer

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