Defend Truth


Tell me how this ends?


Judith February is executive officer: Freedom Under Law.

“Tell me how this ends” – the now famous words by David Petraeus in 2003 when commanding the 101st Airborne division during the US invasion of Iraq. One might ask the same thing after the dramatic events of last week when the ConCourt found that President Zuma “had failed to uphold, defend and respect the Constitution” as the supreme law of the land in contravention of section 83(b) of the Constitution.

The Court also found that the president had failed to assist and protect the Public Protector so as to ensure her independence, impartiality, dignity and effectiveness by failing to comply with her remedial action (as he was constitutionally required to do in terms of section 181(3) of the Constitution).’ The ConCourt went further and held that, “On the one hand, the president has the duty to ensure that state resources are used only for the advancement of state interests.

On the other hand, there is the real risk of him closing an eye to possible wastage, if he is likely to derive personal benefit from indifference. It also had some strong words for Parliament when it said, “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…. By passing that resolution the National Assembly effectively flouted its obligations.

“Neither the president nor the National Assembly was entitled to respond to the binding remedial action taken by the public protector as if it is of no force or effect or has been set aside through a proper judicial process. The ineluctable conclusion is therefore that the National Assembly’s resolution based on the minister’s findings exonerating the president from liability is inconsistent with the Constitution and unlawful.”

Both these paragraphs are worth repeating purely because of the disingenuous and some might say deliberate misinterpretation of the ConCourt judgment during both the president’s shamefully inadequate “apology” as well as the frankly disastrous press conference by Parliament’s presiding officers, Baleka Mbete and Thandi Modise.

All the president could muster was that he was sorry for the “confusion” caused. Mbete declared that she would not resign despite presiding over what can only be described as a sham parliamentary process to cover up President Zuma’s indiscretions. It was Mbete after all who presided over the utterly disgraceful conduct when Zuma addressed Parliament on how to pronounce Nkandla. That laughing video clip of a court jester president might go down as the most embarrassingly unpresidential conduct in the history of post-apartheid South Africa. It showed Zuma’s utter contempt for citizens and Parliament as a democratic institution. And all the while Mbete sat in silence allowing Zuma to diminish Parliament’s stature.

But now we know what we know and no matter the sleight of hand by Mbete and Modise, the ConCourt judgment stands as a record of the president and Parliament’s failure to adhere to the Constitution. History will record that. The bigger question of course is whether they care how history will judge them?

It seems not. Predictably the ANC has closed ranks around Zuma.

The attempted impeachment process came a day after the extended ANC working committee meeting in Cape Town. Asked by journalists what we might expect, Public Enterprises Minister Lynne Brown replied as a sort of non sequitur, “The jazz was good…”, referring to the Cape Town International Jazz festival held that weekend. One wants to call Brown’s comment flippant but it probably just displays a simple arrogance which those in power have who believe that they can’t be dislodged.

The Parliamentary proceedings got off to a predictably robust start. Robust but also deeply worrying for anyone interested in constitutionalism and the rule of law. The ConCourt judgment last week showed just how far our Parliament would go to protect the president. For too long we have known that the Speaker herself, as ANC party chair and one with political ambitions, was unable to preside fairly over the House. As opposition parties asked for her recusal, what was clear was the bitterness and deep disregard which specifically the EFF has for Mbete herself. And so it is that those who allow themselves to be politically manipulated, have a difficult time gaining the respect of those around them. As Corne Mulder said, “When something is wrong, you cannot vote it right.” He was referring to the ANC’s suggestion to put the recusal matter to a vote. It fell as ever to the willing Naledi Pandor to try to shield the ANC and the president by reiterating the call for a vote on whether Mbete should recuse herself. She sounded like the hollow party hack she has become. Mulder was correct. It has become the ANC’s way to use its majority to steam-roller matters through Parliament. After all, it did so when it preferred to ignore the public protector’s report on Nkandla in favour of the police minister’s sham report which exonerated Zuma.

Predictably however, the Speaker, after a break to consider her own recusal, simply sauntered in regally and took her seat to preside over the impeachment debate. The ANC called in deputy justice minister John Jeffery to do their bidding with a weak, legalistic argument on the ConCourt judgment. Jeffrey must now know that he is defending the indefensible?

So, if Zuma is the emperor with no clothes, then the ANC in Parliament has shown itself to be equally toadying and disregarding of the Constitution.

But back to the Petraeus question, “Tell me how this ends?”

Recent surveys indicate that the ANC is losing urban black support and one might imagine that playing out badly for the ANC during the local government elections. Of course, the question one might ask is whether the ANC has not long ago given up on the intelligentsia or as Zuma says, “clever Blacks”. After all, he said only the “clever people” cared about Nkandla.

Relying on traditional constituencies in mostly rural areas is after all Zuma’s strong suit and for many in these areas, the ANC looms large as their lives have changed dramatically. The ANC is therefore taking a decision based on electoral numbers and not necessarily principle. Mantashe of course also said that recalling Zuma would tear the ANC apart. That he made such a frank admission of the deep party divisions is telling.

So then, if the ANC is changing character, that has some profound consequences for those who flock to cities in search of employment and a better quality of life. Much of the heartbeat of South Africa is in the cities as are industries and other economic opportunities. Discounting the urban voter would be a miscalculation given the possibly tight electoral races in Johannesburg, Nelson Mandela Bay and Tshwane. Also, it presents the ANC with a dilemma regarding the kind of party it is; a modern political party driven by the Constitution and the rule of law or a traditionalist party riddled with patronage politics and in which tradition takes precedence over constitutionalism. Zuma has yet to convince us of his commitment to a modern democracy undergirded by the rule of law.

So, it is a short-term solution for the ANC to think that it can paper over the cracks and dismiss the ConCourt judgment as Zuma, Mbete and Mantashe (ANC SG under duress, one feels) have done. History will judge them harshly. But then again, short-term personal gain for Zuma, Mbete and other cronies remains paramount. Zuma himself has far too much to lose to simply capitulate to the opposition and cries from the “clever ones” that he resign. Those voices are growing louder however and now include Trevor Manuel and Ahmed Kathrada. Indeed, even serving officials Pravin Gordhan and Gauteng Premier David Makhura have called on the ANC to again find its ethical compass.

So quite how this ends is an open question. Like the Iraq war, perhaps it will be a long drawn-out affair, messy and without a tidy ending. It will require several nails in Zuma’s coffin, one suspects. Who is left to pick up the pieces after these destructive actors inevitably depart the stage is perhaps the next more pressing question. DM


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