There is a certain inevitability to President Jacob Zuma's big decisions. He makes the appointment. The courts overturn it. He turns on them. And the cycle repeats. If it were not a national tragedy, it would be funny. In the way that Waiting for Godot is a comedy. But it really is another of those all too common stark warnings that things are not going well for us, as a constitutional democracy. By STEPHEN GROOTES.
Menzi Simelane, as you might remember was not our first choice to be the National Director of Public Prosecutions (NDPP), to put incredibly mildly. Anyone who is prepared to take the oath of office and state that he would be fully independent of the executive, after he has said, under oath (to the Ginwala Commission of Inquiry) that he believes the executive can instruct the NDPP, is not someone we can take seriously. Well, he's got his comeuppance.
And so has the president Zuma. When is he going to get it? You cannot appoint legal advisors who give you the advice they think you want to hear. This is going to sink you. And Mr President, may we remind you, it is, ultimately, what sunk your predecessor. The spark that led to the Mbeki recall was his decision, on bad legal advice, to suspend then NDPP Vusi Pikoli. It all comes back to the same problem: arrogance at the top, and no difference of opinion in the voices that they listen to. As a result, we have just one view. When it comes to making policy and big decisions, that simply won't do. We are not designed to be a Big Man state, and we will not become one. (I reserve my judgement on this one - Ed)
At its root, the contestation is simple. A democracy, where majority rules, means the right-handed among us can order the killing of the left-handed. A constitutional democracy means they cannot. At Codesa, things were much starker than they are now. But it was pretty simple. A democracy would mean black people would rule, fully and totally. A constitutional democracy would mean white people would keep their land and goods. The argument about what the ANC and the SACP call "anti-majoritarian rule" is about this, individual rights against the rights of the majority. It's about protecting the loser.
For the record, the court was pretty careful about not making a finding on whether Simelane was a "fit and proper" person as the Constitution demands. Rather it focused on the process Zuma followed, or should have followed. But the five judges, did in one paragraph, pretty much sum up their views on both issues:
"It is clear that the President did not undertake a proper enquiry of whether the objective requirements of s 9(1)(b) were satisfied. On the available evidence the President could in any event not have reached a conclusion favourable to Mr Simelane, as there were too many unresolved questions concerning his integrity and experience."
There you have it: "unresolved questions concerning his integrity and experience".
The judges also give the ANC's "anti-majoritarian" school of thought a massive rocket. They take the time to go and find, not just a damning quote, but one from our first real Chief Justice, Ismail Mohamed. He said:
"A democratic legislature does not have the option to ignore, defy or subvert the court. It has only two constitutionally permissible alternatives, it must either accept its judgment or seek an appropriate constitutional amendment if this can be done without subverting the basic foundations of the Constitution itself.”
The judges go on to say, "These statements are beyond criticism and apply equally when actions or decisions by the executive are set aside." In other words, we are the final word, and you are not. It is a fully-fledged judicial broadside at those who claim the ANC can do what it wants because it is elected by the people.
So, how will the ANC respond? There is going to be some serious gnashing of teeth. Ngoako Ramathlodi may need a little restraining before he writes again about how judges are the enemies of the people. And you can imagine what a young unleashed lion would do – if he were not currently locked in his cage.
The problem for President, and the ANC, is a tricky one. It has never refused to comply with a court order. To do so would really cross a line. At the same time, it's embarrassing to lose these cases all the time. And this one is serious. Zuma has lost one of the main fortifications of his castle. Without Simelane to protect him from any prosecution that may or may not occur as a result of the Arms Deal inquiry, he needs to find a replacement.
First he could decide to appeal to the Constitutional Court. But that carries risks too. He can lose again, badly this time. However that would help him whip up ANC opinion against the judiciary, so it might have its uses. But it would also whip up a civil society currently inflamed by the Protection of State Information Bill. You can imagine the storm should the Constitutional Court give judgments against him in both cases on the same day. Or he could try to comply, and get someone else to replace Simelane. However, Simelane was a party to this case, and so he can appeal on his own, which would delay things. And if he were to appeal and the presidency were not, it would really show chinks in the proverbial armour. And while Simelane still has power (and he does until the Constitutional Court confirms the lower court's order), it's best not to irritate him too much.
And of course, as Pikoli will tell you, it's hard to sack a NDPP. They have to be suspended first, then you have an inquiry. To lose a police commissioner in this way might look unlucky, to lose the NDPP as well looks careless.
So Zuma will probably try to buy him off somehow. Tricky, his term has eight years to run, so it'll have to be something good – the ambassadorial posting to Micronesia won't do it. However something interesting, comfortable and well paid would do the job.
That then leaves the question, who will take over? Willie Hofmeyr? He's the deputy at the NPA. Unlikely somehow, too independent – even though he played an interesting role in the decision to drop those charges against Zuma. Ramathlodi? Still possible, although he's a deputy minister now, which he might enjoy (although it's for Correctional Services, so not that much). But he's also head of elections for the ANC, he couldn't really do both. There are plenty of people we would like to see. For a start, anyone who is simply politically neutral and genuinely independent will do.
Based on Zuma's track record, it won't happen. Simelane, Cele, Mogoeng… need we continue? Simelane was an appalling choice. We expect his successor to be so too. DM