Zuma Watch

Rule of law being abused for authoritarian aims?

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The mere existence of the rule of law in a country is not enough to guarantee the safety of its democracy and can be misused by authoritarian rulers. South Africa might be a good case study for exactly that.

In an article last week on the website of the Helen Suzman Foundation (HSF), legal researcher Piet Olivier wrote: “When, back in August, Finance Minister Pravin Gordhan refused to present himself to the Hawks to give a warning statement, the resulting debate had two sides. The first was that Pravin Gordhan was not above the law and that he should have obeyed the Hawks’ request.”

He goes on to state: “Yes, the other side concedes, of course Minister Gordhan is not above the law. But here, the law is being abused, and thus, by not acquiescing, Minister Gordhan is thus not placing himself above the law.”

The charges against Minister Gordhan have been widely discredited to the extent that, at the time of writing, it was not at all sure that they would not be thrown out of court. However, the damage has been done and the important question remains – why were they brought in the first place?

In this regard, consider:

  • The history of a troubled relationship between Minister Gordhan and President Jacob Zuma;
  • Gordhan’s running battle with the National Prosecuting Authority and the timing and manner of the announcement of the charges at a high-profile media briefing (as if the director was launching a political campaign); and
  • The running battles between the Treasury and Zuma-aligned state enterprises and with the controversial friends of the president, the Gupta family.

Small wonder that constitutional-law expert, Pierre de Vos, remarked about the charges that it  “… from afar, looks suspiciously like a politically motivated witch-hunt, platitudes about the law having to take its course will not do”.

Misuse of rule of law

There are also other pointers in the context of South Africa being a constitutional democracy in which the rule of law is the most central foundation principle. Alongside this principle the constitution as the foundation law of the land also dictates that there should be separation of power and that institutions of state like the NPA should not only be independent, but also politically neutral.

The fact is that the day before the announcement of the charges against Mr Gordhan, the head of the NPA met Mr Zuma and other ANC leaders, which included some members of the cabinet, in Luthuli House, headquarters of the party.

Luthuli House is hardly neutral ground. Hard as it might be to believe, even if one accepts Mr Zuma’s assurance that the Gordhan issue was not discussed during the meeting, it should not have taken place at Luthuli House.

If there were legitimate state or government matters on the agenda that day, it is important to note that the ‘headquarters’ of the state and government is the Union Buildings in Pretoria and not Luthuli House in Johannesburg!

Clearly the principle of the separation of powers, enshrined in the constitution, is treated with contempt by Mr Zuma and his party.

At the same time, while Mr Zuma has the lawful right to take the Public Protector’s report on state capture on review once it is published, he chose to use/misuse another legal instrument to try and block the report by filing an interdict against its release into the public terrain.

And his allies, the Gupta family, have already declared their intention to, when and if the report is indeed finally released, they will tie it up in court actions for at least two years. That will create enough time for Mr Zuma and his friends to implement whatever personal contingency plans they might be making for the time when he is no longer president.

It is also the Guptas who tried to pressurise Mr Gordhan to, in contravention of his legal mandate, interfere on their behalf with South African banks – to the extent that Mr Gordhan felt he had to turn to the court for protection.

Looked at it from this angle, there are echoes with a quotation from Authoritarianism Goes Global, 2016, by Diamond, Plattner and Walker, used by Olivier of the HSF in his article referred to above, which among other things states: “Abuse of law enforcement is another arrow in the authoritarians’ quiver.”

Another example used by Olivier is the Menzi Simelane case. “Here, President Zuma had appointed Mr Simelane as the National Director of Public Prosecutions … a power section 179 of the Constitution explicitly grants to the President. But he had done this despite strong evidence that Mr Simelane had lied under oath.

“This, combined with the need for the NDPP to be honest and independent, rendered the President’s exercise of his section-179 power irrational and therefore unlawful.”

He observes further: “He was clearly empowered to appoint the NDPP. But he exercised that power in a way that the rule of law does not permit: irrationally. This is thus an example of a breach of the rule of law that is an abuse of law.”

Conclusion

As Olivier points out, even if this type of abuse is set aside by a court of law, some of the originally intended damage cannot be undone.

One cannot but agree with Olivier’s conclusion: “An authoritarian that abuses the law will always have these victories, no matter how often he loses in the courtroom. This is why abuse of law cannot be defeated by lawsuits only. It must also be defeated at the ballot box.”

by Piet Coetzer

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