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The Sacred Pact is dishonoured: But will the Sword of Damocles fall?


Judith February is executive officer: Freedom Under Law.

Reading a litany of criticism, one cannot help but wonder how the Speaker, the Minister of Police, the MPs who voted for the Nkandla report to be adopted and the president himself could survive such hard-hitting findings. For the ConCourt was right: “there was everything wrong” with the way in which MPs and Cabinet ministers acted, putting party and president above all.

Cicero, the Roman lawyer and orator, often retold the story of the tyrant Dionysius II of Syracuse who was regularly praised by the sycophantic Damocles. Envying his position of power and wealth, Dionysius asked, “So, Damocles, since this life delights you, do you wish to taste it yourself and make trial of my fortune?” Damocles agreed and found himself in luxury, surrounded by riches of gold and silver. In the middle of this luxury, Dionysius ordered that a shining sword, fastened from the ceiling by a horse-hair, be let down so that it hung over Damocles’ neck. Damocles, unable to move to his left and right, finally begged the tyrant that he should be allowed to depart because he no longer wanted to be fortunate.

One might say President Zuma has the Sword of Damocles hanging over his neck, though his movement might not yet be as restricted as it was with the unlucky Damocles. What Zuma has no doubt learnt now is that institutions matter. Despite his dogged attempts to undermine the Constitution and the office of the Public Protector, the judgment of the ConCourt was damning. Zuma might be in power, but uneasily so.

The ConCourt faced a test of sorts because its judgment was going to the very heart of power. Chief Justice Mogoeng Mogoeng presided over the hearing of the matter with skill in February and while he may not have been first choice for the position of Chief Justice, he has demonstrated his independence during his tenure. And so it fell to the Chief Justice to hand down the unanimous judgment.

Of course, the quite extraordinary about-turn by Zuma’s senior counsel, Jeremy Gauntlett, when he said the Public Protector’s report was indeed binding, left the matter with an air of inevitability. But it was always going to be about how the ConCourt crafted its judgment and the language it was going to use. Would it be directly damning or would it skirt the issue? Well, we know now that the ConCourt was in no mood for being ambiguous. It reasserted the powers of the Public Protector and the power of the Constitution when it invoked s83 of the Constitution. After all, the section is mandatory: “The President … must uphold, defend and respect the Constitution as the supreme law of the Republic…” Of the President, the ConCourt held unequivocally that “he is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project”. Thinking of the president, one might not easily be able to conjure up Zuma as the “personification” of our constitutional project.

The judgment very clearly outlined our “constitutional architecture” and its crucial components signifying a president who must be at the heart of entrenching the rule of law. Anything else would be failing the Constitution. It held that, “The President thus failed to uphold, defend and respect the Constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the Public Protector in terms of her constitutional powers.”

At that point, one’s mind had to wander to the many guffaws in Parliament as the president bullied his way past questions on Nkandla and his mocking of those who believed he ought to be held to account. And indeed, one’s mind wandered to the disgraceful way in which Parliament and Zuma’s sycophantic ministers kowtowed to protect his excess from scrutiny.

The key question was always about whether the Public Protector’s remedial action is binding or not. There the ConCourt was equally unequivocal as it held her recommendations were “binding”. Yet it went further and said that “she is the embodiment of a biblical David, that the public is, who fights the most powerful and very well-resourced Goliath, that impropriety and corruption by government officials are.”

It saved some rather choice words for our Parliament, intended to speak on behalf of the people of South Africa, when it said, “The National Assembly chose not to challenge the Public Protector’s report on the basis of the findings made by the Minister of Police and its last Ad Hoc Committee. Instead it purported to effectively set aside her findings and remedial action, thus usurping the authority vested only in the Judiciary. But there was everything wrong with the National Assembly stepping into the shoes of the Public Protector, by passing a resolution that purported effectively to nullify the findings made and remedial action taken by the Public Protector and replacing them with its own findings and ‘remedial action. This, the rule of law is dead against. It is another way of taking the law into one’s hands and thus constitutes self-help.”

Reading this litany of criticism, one cannot help but wonder how on earth the Speaker, the Minister of Police, the MPs who voted for the Nkandla report to be adopted and indeed the President himself could survive such hard-hitting findings? For the ConCourt was right – “there was everything wrong” with the way in which MPs and Cabinet ministers acted; putting party and president above all. Mbeki was recalled after the Nicholson judgment provided the ANC with a perfect storm.

But this is no country for a recall at this time. This judgment has been a powerful vindication of the Public Protector and those in the media and civil society who would not let this story go. Yet it is the ANC and the citizens of this country who will finally seal Zuma’s fate. In one of the greatest bits of irony of this judgment, it will be the National Treasury which will have to determine the amount Zuma has to pay back. Once again, Finance Minister Pravin Gordhan enters the fray. Given Gordhan’s rather boisterous response to the Hawks’ investigation today, one might argue that he finds himself in a most powerful position, even if he will have to play his cards carefully. Zuma will need to adhere to the ConCourt’s order lest he plunge the country into a constitutional crisis for failing to do so. Given all of the above and the sad indictment which the ConCourt judgment is on the president, one might expect that a head of state would exercise his conscience and resign, but we know better than to expect that to happen.

In the slow process of deliberation which the ANC favours so well when faced with a difficult situation, the unravelling will take some time yet. The opposition Democratic Alliance is calling for impeachment, though it does not have the numbers for such an exercise to be fruitful. The Speaker of Parliament, herself deeply compromised, can hardly be trusted to preside over any such motion fairly.

In addition, impeachment would need a two-thirds majority in the National Assembly in terms of s 89(1) of the Constitution. The ANC has the numbers of course although it could well be said that Zuma has committed a “serious violation of the Constitution”. Equally, a motion of no confidence in the president will need a “majority” of the National Assembly members in terms of s102 (2) of the Constitution. So, where the ANC has the numbers to defend the indefensible, it will need the party itself, outside of Parliamentary rules, to deal with the president and the current situation.

The ANC though would be minded to consider the ConCourt’s words when it held that “public office-bearers ignore their constitutional obligations at their peril. This is so because constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.”

Thursday’s ConCourt judgment might not spell the immediate end many wish for this tawdry and corrupt presidency but it surely will come. Zuma rules, but with what legitimacy when the highest court in the land has made a unanimous finding that he failed to uphold the Constitution – that sacred pact between citizens and their elected representatives? Unlike Damocles we cannot expect that Zuma asks to be released from the sword hovering over his head. He clearly believes he still has room to move. DM


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