The Democratic Alliance’s (DA) chief whip in Parliament, Watty Watson, has written to Max Sisulu, speaker of the National Assembly, requesting that he establish a multi-party ad hoc committee to conduct an inquiry into the deployment of the South African National Defence Force (SANDF) in the Central African Republic (CAR).

Among other questions, the DA wants the committee to investigate whether President Jacob Zuma authorised the deployment of the SANDF against the advice of Minister of Defence and Military Veterans Nosiviwe Mapisa-Nqakula, and the military command. It also wants the committee to probe whether the president effectively misled Parliament when he informed members of the joint standing committee on defence that the SANDF was being deployed in the CAR to assist with “capacity building of the CAR defence force” and to assist with the “implementation of the disarmament, demobilisation and re-integration process”.

The committee must also look into the exact circumstances under which 13 members of the SANDF were killed in the CAR, says the DA spokesman on defence, David Maynier. 

Sisulu is out of the country so the request will be dealt with by the deputy speaker, Nomaindia Mfeketo. Judging by the way the ANC caucus in Parliament has dealt with previous attempts to hold Zuma to account, the chances of Mfeketo acceding to this request are slim. And since this is a “request”, she is obviously entitled to decline. As illustrated by last year’s attempt by eight opposition parties to pass a motion of no confidence in Zuma, there is not much that can be done if the ANC uses its parliamentary majority to frustrate any and all accountability mechanisms.

The common method for the opposition to get members of the executive, including Zuma, to account is through parliamentary questions. But as it has been evident from the paltry responses to questions on the state-funded renovations at Zuma’s Nkandla residence, incidents of police brutality, corruption and non-performance in the state, as well as wastage of taxpayers’ money, this is a less than effective method of achieving accountability.

If the president and ministers choose to dodge or deflect questions, or provide inadequate answers, there is not much opposition MPs can do except heckle and shake their heads.

While Parliament has all the facilities under the Constitution to exercise oversight over the executive, these are all rendered useless if members of the executive do not take them seriously and are protected by the ANC caucus.

With all the unanswered questions around the SANDF’s role in the CAR as well as the death and injury of soldiers in combat, it is clearly inconsistent with the spirit of the Constitution that the president does not account to the nation. It is a flaw in the system that when a situation as serious as South Africa’s involvement in a war in the CAR arises, there is no way to compel the president to account to the nation – if he chooses not to.

There is also no explanation for the continued presence after rebels toppled the government the South African troops were aiding and the deployment of more troops this week. Despite the financial implications for the country and the fact that more South African lives are at risk in a highly volatile situation, there is seemly no compulsion on the part of the president to take the nation into his confidence or urgency by Parliament to hold him to account.

Associate Professor of Public Law at the University of Cape Town, Richard Calland, says on a matter of major national importance, the speaker has the option of calling a special sitting of Parliament to debate the matter and ensure that the institution plays its oversight role. The opposition can also table a motion calling for an emergency sitting of Parliament. There is also nothing to stop parliamentary committees, such as the joint standing committee on defence, from summoning the president to get answers, Calland said.

It has become international convention that troop deployments outside a nation’s borders require parliamentary announcement. However, Calland says, Zuma has been known to take the “line of least resistance” in such situations. There are also questions about the quality of the president’s legal and constitutional advice to make sure that his decisions are proper, he said.  

There appear to be different interpretations of the Constitution, which provides the president with loopholes. For example, it would be difficult to pin Zuma down as to whether he followed all the correct procedures in authorising the troop deployment to the CAR in January.

The Constitution stipulates that “only the President, as head of the national executive, may authorise the employment of the defence force”. Calland says if “as head of the national executive” is read to mean in consultation with his Cabinet, Zuma could be on thin ice as he would need to show that the deployment of more troops to the CAR was discussed and agreed to in Cabinet.

As there were no Cabinet meetings during this period due to the recess, Zuma’s decision could only have been discussed and supported by Cabinet after the fact. But none of the statements issued after Cabinet meetings refers to the issue. Acting Cabinet spokeswoman Phumla Williams could not say whether the matter was discussed and referred questions regarding the CAR deployment to the Department of Defence and Military Veterans.

Defence department spokesman Siphiwe Dlamini said he was not aware if the issue was discussed by Cabinet. “To my knowledge, Parliament must be informed about the numbers, length of deployment and financial implications. I am not familiar if whether it has to pass through Cabinet first,” Dlamini said. 

Constitutional law expert Pierre de Vos (and Daily Maverick columnist) says the deployment of the military is not just a head-of-state prerogative, but the Constitution is vague on whether the president needs to consult the defence minister or the whole Cabinet. However in light of reports that Zuma disregarded Mapisa-Nqakula’s recommendation that the SA troops be withdrawn from the CAR, and instead sent in more soldiers, there could be strong grounds to challenge Zuma’s actions constitutionally, De Vos said.

This is however dependent on whether Mapisa-Nqakula owns up to her recommendation. Calland says when former British prime minister Tony Blair decided to participate in the war in Afghanistan, he bullied his cabinet to support his decision and as a result, some of its members resigned. However the chances of members of South Africa’s Cabinet breaking ranks with Zuma to expose discord are remote. 

De Vos says another issue now on the table is the legality of the SANDF’s continued presence in the CAR in terms of the bilateral agreement between the two countries. He said in terms of international law, if the situation changes drastically from when the agreement was signed, making it impossible to implement it, that agreement is then nullified.

De Vos believes that because François Bozizé is no longer president and there is no government army to train, the bilateral agreement allowing the military co-operation between South Africa and the CAR is null and void. Zuma’s decision to not only keep the SANDF in the CAR, but to send in even more soldiers and equipment means that South Africa is now in a “state of defence” or “at war”, said De Vos.

In terms of the Constitution, this change in the role of the SANDF in the CAR (from what Zuma initially said it was) must be approved by Parliament within seven days or the presence of the troops there could be deemed illegal. 

The disturbing fact is that, given the limitations of parliamentary oversight, the president can only be held to account if his party wants him to do so. So far, both Luthuli House and the office of the chief whip in Parliament have issued statements supporting the troop deployment in the CAR, and the ANC is bound to form a human shield around Zuma to protect him from scrutiny on this matter.

Therefore, as things stand, questions about whether rebel or government troops shot the South African soldiers, what interests were being protected through the deployment and what purpose the reinforcements are to play now might never be answered.

Well, unless the balance of power shifts dramatically within the ANC. Let’s not forget that former president Thabo Mbeki won a second term as ANC president at the height of his Aids denialism, his protection of Zimbabwe’s President Robert Mugabe and attempts to squash the left in the alliance. However, his unfettered power led him to commit fatal political mistakes such as interfering with the security services for political objectives. This swung sentiment in the ANC against him, suddenly and overwhelmingly, and he was defeated and ousted.

Zuma might look invincible and all powerful after crushing his contenders in Mangaung and his actions might appear impervious to scrutiny. But he is committing numerous massive mistakes, taking disastrous decisions and failing to act on matters which are bringing his administration into serious disrepute, locally and internationally. His decision to engage South Africa in a war by stealth is by far his most deadly error, which is making people in his own party uncomfortable, though only privately so.

Zuma may not be as politically indomitable as he might appear to be, or as safe as he thinks he is.

And if the president does not treat his nation with respect, South Africans can always return the sentiment – in a year, at the polls. The only thing still more powerful than the president and the Constitution is the X on the ballot paper. The future of South African democracy, and the country itself, depends on it. DM

Photo: South Africa’s President Jacob Zuma listens during closing remarks at the 5th BRICS Summit in Durban, March 27, 2013. REUTERS/Rogan Ward