Crises present hard lessons in Zuma narrative

It is an indictment of President Jacob Zuma that he does not take seriously the meaning of constitutional supremacy, says the writer. File picture: Nic Bothma, EPA

It is an indictment of President Jacob Zuma that he does not take seriously the meaning of constitutional supremacy, says the writer. File picture: Nic Bothma, EPA

Published Feb 8, 2016

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Crises are invariably double-sided: they can be both indictments and opportunities.

This forthcoming week will present a couple of double-sided crises for President Zuma. Let’s take, firstly, the upcoming Constitutional Court battle about the status of the public protector’s recommendation.

It is an indictment of the president that he does not take seriously the meaning of constitutional supremacy. This is both a legal and a political embarrassment. Politically, you’d expect the executive to respect the oversight function that chapter 9 institutions play in our democracy. They are designed to be a constitutional check on the exercise of public power and they are an important safeguard against unlawful behaviour and the abuse of state power.

By constantly doing battle with the public protector, the president is sending the message that he finds the very existence of the office of the public protector a political irritation. And this, of course, is in line with his unconvincing view of democracy as a sort of game in which the party with the majority votes does not have political and legal duties to be subservient to the constitution.

Legally, of course, this is untenable. The word “supremacy” in “constitutional supremacy” means exactly that in law; the president’s actions must be consistent with the letter and spirit of the constitution and that, therefore, includes compliance with the recommendations of the public protector.

The EFF and the DA are right to turn down the president’s offer to settle this matter out of court. For the sake of legal certainty, it is vital for the Constitutional Court to settle the matter of what the status of public protector reports are. It’s already fairly obvious that these recommendations will be found to be binding unless a review in a court of law should find otherwise when a particular report is challenged. Absent such a challenge, recommendations must be implemented.

That would strike a balance between the recommendations not being mere suggestions and still leaving open legal room for contesting any claim that there are material mistakes the public protector might have made in the exercise of his or her duties. At any rate, good legal systems have predictable laws, and this case allows the opportunity to create some predictability in relation to the status of the public protector. That’s a good thing.

There is also, however, an opportunity here for the president to show that he, too, wants legal certainty rather than simply wanting to reduce the oversight function of the public protector. I doubt whether Zuma’s history of disrespecting constitutional supremacy can be reversed so easily, but it can only help him, nevertheless, to make sure that his approach to this case doesn’t cement the image of him being an opponent of constitutional democracy. But don’t get your hopes up.

The second double-sided crisis will be the State of the Nation address. This president will be indicted if he fails to demonstrate this week that he understands the most important moment of his time in office. There is an ethical cloud above his not-insubstantial head. Racism is rife, still. Economic growth is soul-destroyingly low. Inequity reigns supreme, still. Environmental crises like water shortages are on the brink of becoming a security crisis. It is an election year and local governance remains a shambles.

There is, in other words, no shortage of reasons to be depressed about the state of the state, and the state of unethical and impotent leadership right at the top. And if Zuma simply giggles his way through a dull speech – whether nervously or an expression of hubris – then he will have written his political obituary himself, a tragicomic end to what started out with popular party support back in Polokwane.

Yet, the SONA will also be an opportunity for a miracle. And far be it from agnostic me to pray for such. But surely, if we learnt one thing from Zuma’s attempt to offer a settlement on the Nkandla matter, it is that he obviously feels vulnerable. And that is not a bad thing. He should feel vulnerable because his record in office, as it stands, is nothing short of ruinous.

So, imagine what a deeply honest analysis of the state of the nation would do to lift, just a little, that cloud that hangs above his not-insubstantial head. Some facts and figures are important, of course. But that kind of granular detail will come in the Budget speech of the minister of Finance.

What Zuma needs to do is give us narrative. Tell us a story that is a breathtakingly honest diagnosis of the society we live in, in the year 2016. It is a deeply damaged society. And the president can take us into his confidence by not pussyfooting around the truth. Taking political responsibility would help, too. But now I am really praying for miracles, and that is irrational, if understandingly desperate.

* Eusebius McKaiser is the best-selling author of A Bantu In My Bathroom and Could I Vote DA? A Voter’s Dilemma. His new book - Run, Racist, Run: Journeys Into The Heart Of Racism - is now available nationwide, and online through Amazon.

** The views expressed here do not necessarily reflect those of Independent Media.

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