Eusebius McKaiser
Last week was President Jacob Zuma’s week of horror – as we all thought it would be. The hard work though was all done on Tuesday in the Constitutional Court – after that it was all pretty much downhill, even the State of the Nation address (Sona 16) in Parliament, the long-awaited sequel to Sona 15 was a total anti-climax. In Richard Poplak’s immortal words, it was a “Zombie Apocalypse”.
The court had been called to determine the status of the remedial actions recommended by the public protector in the Nkandla matter. And, boy, what an exciting day of constitutional activity it was. The judges were in fine form, asking excellent questions. Chief Justice Mogoeng Mogoeng was particularly razor sharp throughout, presiding authoritatively. Constitutional supremacy was entrenched, and that’s good for our democracy.
Perhaps the most newsworthy moment was the concession by President Zuma, via his counsel, advocate Jeremy Gauntlett, that the recommendations of the public protector are binding. He accepted that in this case – though not necessarily in all instances of public protector work – the recommendations constitute administrative action and, since there was no judicial review that had set these aside, that Zuma is bound by the recommendations as a matter of administrative justice.
What happened next, given the torturous legal minefield that Zuma has tiptoed through for the last two years, was spectacular: he threw the minister of police under the Gautrain. Gauntlett made it clear they accept that the authority of the report of the public protector – including her recommended remedial action – cannot be subverted by the report of the minister of police. So much for sweating profusely at press conferences on behalf of the president while inventing new gibberish like “firepool”.
This might strike you as an extraordinary set of concessions. And certainly for a few minutes the judges themselves asked lots of questions at this stage, instead of just sitting back to see where Gauntlett was going after his opening gambit. It was soon revealed: turns out that the president has a fear that is bigger than paying back the money for Nkandla – impeachment.
Gauntlett pleaded poetically with the court to not make any declaratory order that the president had acted unconstitutionally because that could be the basis for an impeachment move, politically. Here he cited some case law to justify why the court should, in general, not make declaratory orders with gay abandon. But it was also clear, in the context of his language choices at this point, that he was bordering, frankly, on making political rather than legal argument proper, throwing in, parenthetically, a remark or two about the kind of crisis that could result from impeachment proceedings during a time when our society is already under stress.
Zuma is prepared to be directed by the court about how the amount to be paid should be determined and settled, and is prepared to accept a short time frame for payment even. The real aim though was to sidestep any political or constitutional crisis long after any money has been paid back.
A supporting premise for the plea that the court not make a declaratory order as wished for by the other parties, was Gauntlett’s assertion that Zuma had all along acted in good faith rather than trying to deliberately defy the public protector. The president is now pretending that there is such incredible vagueness in law about the status of public protector reports that only until recently have we begun to approximate the kind of certainty that led to the “evolution of thinking” on his part that he should try to settle. The chief justice, it seems, really believed this too, and pushed counsel for the EFF Wim Trengove to concede that we have no evidence that the president had been acting in bad faith. Both advocate Trengove and advocate Gilbert Marcus pointed out the obvious, that whether or not Zuma has been acting in good faith or in bad faith, if is he acting unconstitutionally by not complying with the binding recommendations of the public protector, then the other parties are entitled to relief from this court to remedy a grave administrative injustice, and avoiding a constitutional crisis for the country.
Everyone seems to agree, and judgment is reserved.
The most embarrassing exchange was between the chief justice and counsel for Parliament advocate Nkosi Thomas, who desperately tried to imply that Parliament can of its own accord decide the status of the recommendations of the public protector. The CJ gave her a constitutional law 101 lesson about the duty of Parliament to hold the executive accountable. In turn, the report of the public protector provides the basis on which Parliament should hold the president accountable. It was inappropriate to try to subvert the authority of the public protector.
I wished that every lazy and unethical ANC backbench MP who regards the authority of Luthuli House as more important than the constitutional role of an MP could have listened to Chief Justice Mogoeng explain very simply and powerfully what the chief role of Parliament is.
So, Tuesday was a good day for entrenching constitutional supremacy. It was a good day for entrenching the role, and constitutional authority, of the public protector. It was a good day for role-modelling the difference between our democracy – with all its weaknesses, still – and countries in the region, like Zimbabwe, to which we are hastily compared by some people. It was a good day for the opposition parties, especially the EFF, who have not tired in keeping this matter on the legal and public agenda.
Only one caution: liberal institutions like a progressive constitutional court matter to the health of our democracy but also have their limits. Even if the court were to, say, make a declaratory finding that shames the president or Parliament for constitutional underperformance, that won’t mean that poor people will suddenly have food, secure housing, access to good education, etc. I would never underestimate the power of legal activism in a democracy. But, equally, we have to accept that political processes remain crucial to demanding a more responsive and effective state. These political processes include, of course, the forthcoming elections. We need to use all of these accountability mechanisms to demand and effect transformation in society.
Constitutional Court judges aren’t magicians.