A few weeks ago I invited a friend to observe a sitting of Parliament. As someone with a background in the law, she remarked that with its rules and procedures, Parliament was very similar to a court sitting. It reminded her that like a court of law, for Parliament to operate optimally, these rules and procedures needed to be adhered to.
For the administration of justice to happen fairly the judge and lawyers must work within the parameters set by legal procedure. For Parliament to legislate and hold the Executive to account, the Speaker of the House and Members of Parliament (MPs) must operate within the parameters set by the parliamentary rulebook.
With that in mind, I was astounded last week when Parliament failed to uphold its rules and deliver correct recourse, and that a matter a serious as Nkandla was not given the attention it deserved. The entire Nkandla scandal is rooted in Parliament not adequately practicing its oversight function over the Executive, including the president.
In fact, Nkandla is an instance of the Executive having far too much power; hence the arrogance of the president and his Executive when they are brought before the House and Committees to answer for their deeds.
But, for this moment, let us not talk about Nkandla and rather talk about another matter of national importance – the National Prosecuting Authority (NPA).
The NPA is a key institution of the criminal justice system, headed by the National Director of Public Prosecutions (NDPP) who is appointed by the president. In the case of a president who has manipulated his way out of answering for his ‘sins’, so to speak, it is a clear conflict of interest for that same president to appoint the person who has the authority to ensure that he, and all citizens, are tried before a competent court.
This was precisely my question to the president in Parliament last week, when I asked if he saw a conflict of interest in his personally appointing the NDPP, to which he answered by saying that my question was not a question.
The principle of the separation of powers or checks and balances, ensures that no one arm of the government has a monopoly on power, and that each arm can hold the other accountable.
For the president to have the sole power to hire and fire the country’s chief prosecutor should concern us all, even if the president is a woman or man not facing charges.
The way to avoid this conflict of interest and dilute this grip on power is to take the hiring and firing prerogative away from an individual, and give that power to an institution. In this case the rightful institution is Parliament.
The National Director of Public Prosecutions should be accountable to Parliament, not to the president, regardless of who that individual is who occupies the West Wing of the Union Buildings.
When the 781-odd charges were dropped against President Jacob Zuma on 6 April 2009, the NDPP’s only concern was answering to the President for the decision made. The charges being dropped resulted in Mr Zuma being elected President, giving him the power to appoint someone of his choosing to be NDPP, who would ensure that Mr Zuma never sees his day in court.
Do you see the conflict in interest?
If the NDPP were accountable to Parliament, they would have had to report to Parliament on why they deemed it fit to drop the charges against Mr Zuma. Instead, without that public accountability, South Africa was left with more questions than answers.
If the NDPP decides to go after the politically connected or even the president, the president is (over)empowered to fire that individual. This cycle will only end when Parliament is empowered to do its job.
Of course, it is impossible to talk of President Zuma and his motivations for controlling the prosecution services without returning to Nkandla. The Public Protector has unequivocally found against the president. And the Public Protector has mandated remedial measures including that the President must pay back his undue financial benefits.
This is the very question that the president didn’t answer in Parliament last week, causing Parliament to descend into chaos. The president dodged, the Speaker backed him up, and the people of South Africa were left as the sorest losers.
A trend of President Zuma dodging allegation after allegation, finding after finding, charge after charge and case after case points to an ANC leadership hell-bent on finding every mechanism it can to protect the president. This is so despite the fact that the president is the person who stood hand on heart and affirmed his oath to uphold the constitution and the law.
We have slid a slippery slope from that oath to the reality we face today.
But, of course, there’s little threat of doing the time when you decide who prosecutes crime. DM