The Con Court ruling & democratic institutions

Institutions matter. President Zuma is slowly beginning to find that out. During his presidency he has waged a systematic war against our democratic institutions.  Since the firing of Finance Minister Nhlanhla Nene and the subsequent statement by Deputy Minister Mcebisi Jonas of the Guptas’ influence over state appointments, it is clear that for Zuma being president is about protecting his own interests and those of his friends. Anyone getting in the way is mere collateral damage.

The National Prosecuting Authority and the South African Police Service are examples, as are our state-owned enterprises. All save the SA Post Office (for now…?) under Mark Barnes have been subjected to intolerable political interference. The revelations surrounding corporate governance at SAA and Eskom are legion, as are those about the SABC.

Yet, as often happens, democracies can be annoyingly resilient and South Africa, with all its challenges and quirks, has an often very surprising in-built resilience. And so in this context, Zuma would come up against the seemingly coy Advocate Thuli Madonsela after her appointment as Public Protector. He would also repeatedly come up against the courts.

Despite the sometimes blatant attempts to hijack the judiciary, in general our judicial system has held up against some pretty damning attacks from the president and his supporters.  ANC secretary-general Gwede Mantashe has in the past not hesitated to call judges ‘counter-revolutionaries’ when he felt Zuma was under pressure. Mantashe may now have changed that tune.

Chief Justice Mogoeng Mogoeng was not the ‘establishment favourite’ to head the Constitutional Court and certainly not as favoured as the erudite deputy Chief Justice, Dikgang Moseneke. Yet, he has been unpredictable and has shown an independent-minded streak emboldened by his security of tenure.  During the Nkandla hearing Mogoeng took the lead and managed the process with impressive acuity.

In the background, during the years of unfolding scandal in the Zuma presidency, has been a robust media which first broke the story of Nkandla excess.  Madonsela, for her part, did not give up despite concerted attempts by the ANC to vilify her. This tenacity will possibly be her greatest contribution to strengthening South Africa’s democracy.

And so today, the Constitutional Court faced a test of sorts because its judgment was going to the very heart of power.  Section 83 of the Constitution states that ‘The President… must uphold, defend and respect the Constitution as the supreme law of the Republic’.

The Constitution uses mandatory language – ‘must’. And indeed, the Constitutional Court reaffirmed that language in its judgment. From the very beginning of the judgment, it was clear that Mogoeng, delivering a ‘unanimous’ judgment of the court, was not going to be mincing his words. The judgment carefully outlined our ‘constitutional architecture’ and its crucial components. Already then it was not looking good for the president.

Of course, the quite extraordinary about-turn by Zuma’s senior counsel Jeremy Gauntlett, when he said the Public Protector’s report was indeed binding, left the matter with an air of inevitability. But, it was always going to be about how the Constitutional Court crafted its judgment and the language it was going to use. Would it be directly damning or would it skirt the issue? Well, we know now that the court was in no mood for being tame. It reasserted the powers of the Constitution when it held unequivocally about the President that:

 “He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of State affairs and the personification of this nation’s constitutional project.

“The President thus failed to uphold, defend and respect the Constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the Public Protector in terms of her constitutional powers.” One’s mind had to wander to the many guffaws in Parliament as the President bullied his way past questions on Nkandla and his mocking of those who believed he ought to be held to account. And indeed, one’s mind wandered to the disgraceful way in which Parliament and Zuma’s sycophantic ministers kow-towed to protect his excess from scrutiny.”

The question of course was always about whether the Public Protector’s remedial action is binding or not. There the court was equally unequivocal as it held her recommendations were ‘binding’. Yet, it went further and said that:

“She is the embodiment of a biblical David, that the public is, who fights the most powerful and very well-resourced Goliath, that impropriety and corruption by government officials are. The Public Protector is one of the true crusaders and champions of anti-corruption and clean governance.”

And it saved some rather choice words for our Parliament, intended to speak on behalf of the people of South Africa, when it said:

“The National Assembly chose not to challenge the Public Protector’s report on the basis of the findings made by the Minister of Police and its last Ad Hoc Committee. Instead it purported to effectively set aside her findings and remedial action, thus usurping the authority vested only in the Judiciary.

“But, there was everything wrong with the National Assembly stepping into the shoes of the Public Protector, by passing a resolution that purported effectively to nullify the findings made and remedial action taken by the Public Protector and replacing them with its own findings and “remedial action”. This, the rule of law is dead against. It is another way of taking the law into one’s hands and thus constitutes self-help.”

Reading this litany of criticism one cannot help but wonder how on earth the Speaker, the Minister of Police, the MPs who voted for the Nkandla report to be adopted and indeed the president himself could survive such hard-hitting findings? For the Constitutional Court was right – “there was everything wrong…” with the way in which they acted, putting party and president above all.

But, this is South Africa. This judgment has been a powerful vindication of the Public Protector and those in the media and civil society who would not let this story go. Yet, it is the ANC and the citizens of this country who will finally seal Zuma’s fate.

The unravelling will take a while and the Constitutional Court judgment is yet another nail in Zuma’s coffin. He rules, but with what legitimacy when the highest court in the land has made a unanimous finding that he breached the Constitution – that sacred pact between citizens and their elected representatives? As Mogoeng said, the Constitution is about ensuring that the voiceless have a voice and are protected from the “unchecked abuse of power”.

Of course, one might expect that a head of state would exercise his conscience and resign given today’s judgment, but we know better than to expect that to happen. The ANC is studying the judgment, as is Zuma, yet the party was quick to affirm the Constitutional Court’s powers. As well it should.

In the slow process of deliberation which the ANC favours so well when faced with a conundrum, the unravelling will take some time yet. The opposition Democratic Alliance is calling for impeachment, though it does not have the numbers for such an exercise to be fruitful.

That would need a two-thirds majority in the National Assembly in terms of s 89(1) of the Constitution. The ANC has the numbers of course, although it could well be said that Zuma has committed a “serious violation of the Constitution…”. Equally, a motion of no-confidence in the president will need a ‘majority’ of the National Assembly members in terms of s102 (2) of the Constitution. So, where the ANC has the numbers to defend the indefensible, it will need the party itself, outside of Parliamentary rules, to deal with the president and the current situation.

And so today’s Constitutional Court judgment might not spell the immediate end many wish for this tawdry and corrupt presidency, but it surely will come. The end will be a drawn-out affair and in the meantime, citizens would do well to ponder on the words of the Constitutional Court judges when they mark their ballot papers come election time later this year. Our democratic institutions may be frayed at the edges, but today the Constitutional Court not only reaffirmed the power of our Constitution, but also the centrality of the rule of law in holding the powerful to account. Zuma might survive for now, but there really is no place to hide in light of this judgment.

*This article appeared in Eye Witness News and can be read on their website by clicking here. 

Judith February is a consultant on governance matters and affiliated to the University of Cape Town’s Graduate School of Development Policy and Practice.  Prior to that she was Executive Director of the HSRC’s Democracy and Governance Unit and also Head of the Idasa’s South African Governance programme.  Judith has worked extensively on issues of good governance, transparency and accountability within the South African context.  She is a regular commentator in the media on politics in SA and in 2009 served on an ad hoc panel to evaluate the effectiveness of South Africa’s Parliament. She is a regular columnist for Media24 and also an occasional columnist for the Daily Maverick and other publications.  She is the co-editor of “Testing democracy: which way is South Africa going?” March 2010, Idasa. She was awarded a summer fellowship in 2009 at the Freeman Spogli Institute for Democracy Development and the rule of law at Stanford University, California and in 2012 was awarded a Spring Reagan-Fascell Fellowship at the National Endowment for Democracy in Washington DC.

To see Judith February's extensive list of publications on our website please click here.

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