Sunday, August 31, 2014

How much more abuse can the constitution take from Zuma?

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31 August 2014 | Tony Leon | Original Publication:  Sunday Times

Our President’s manoeuvres are sailing ever closer to the wind

It is not clear what reading matter President Jacob Zuma’s Kremlin hosts provided for him at the Dacha where he rested during this week’s visit to Russia. The timing of the trip is doubtless a coincidence, but he certainly chose a useful moment to escape from local difficulties, ranging from an unbowed Public Protector, an uber- aggressive Economic Freedom Fighters’ leader and the smoking gun perhaps lurking in the spy tapes. 

But it is certain that Zuma was not given sight of the article which journalist Philip Stephens published recently in the Financial Times.  He had also gone to Moscow, but neither for a rest nor to nudge along unnecessary nuclear power station contracts.   Stephens went there to try to divine why Zuma’s host, President Vladimir Putin, was behaving as he has been these past months: annexing Crimea, arming  rebels in Eastern Ukraine, banning McDonalds hamburgers  and even eclipsing South Africa’s sclerotic  GDP growth which in Russia is likely this year to spiral down to zero percent.

Stephens quoted the aphorism of a local who explained Putin’s hostility to his neighbours and the West as being a case of “when you don’t know what to do, you do what you know.” Putin is not the last or first leader who, confronted by the unknown, seeks refuge in the familiar.

The South African presidency seems to have taken this Russian recipe and applied anabolic steroids to the formula. Perhaps not for nothing was Zuma’s pre-presidential legal approach, when escaping the coils of looming corruption charges,  dubbed the “Stalingrad strategy.” But combat by exhaustion, delay  and destruction is one thing when you are fingered for the criminal dock, and quite another  when you are the president charged with upholding and enforcing the constitution. President Richard Nixon tried much of the same thing during the imploding Watergate crisis.  But  he was undone by his own voice on a tape, not admittedly by the voices of others, as in the case of the local spy-tapes, which might or might not provide a rational basis for the non-prosecution of the president on the corruption charges which cleared Zuma’s path to the presidency.

But before any of that unspools after the Democratic Alliance’s victory in the Supreme Court of Appeal on Thursday, which could disprove the National Prosecuting Authority claim of a conspiracy against Zuma, and the springboard (or excuse depending on your viewpoint) for dropping the corruption charges, there is the matter of Nkandla, Parliament and the Public Protector.  Here matters are both, simultaneously, more   and less straightforward. It’s literally a matter of what she said and he didn’t say or do.

Thuli Madonsela in an explosive letter last weekend, and the origins for its appearance onto the front pages remains contested, stated very plainly that the President’s response to her report on Nkandla which required him to repay an undetermined amount for the costs of improving his private residence amounted, in essence, to a non-response and an evasion of its central findings.

Weary readers might recall that Zuma’s response was to instruct a subordinate, the minister of Police,  to determine his culpability for any of the costs. What she didn’t say, but which the author Upton Sinclair once famously did, is that “it is difficult to get a man to understand something, when his salary depends on his not understanding it.” So, it’s an interesting stratagem to get a minister who enjoys the perks and privileges of office to decide whether the person, on whom his continuance in high office solely depends, needs to pay back multiple amounts of money.

But Madonsela actually went further; she suggested not only might this be a bad idea, but in fact it was ‘illegal’ since it conferred on the minister powers which he did not have and which usurped the powers of the court, the only institution which could review her findings. Second-guessing by a cabinet minister, in other words, is not just poor form but is, on her interpretation, unconstitutional. 

Naturally the African National Congress launched a ‘fight back’, by labelling her response to the president’s non-response as “undermining parliament”, pursuing a ‘personal matter’ and ‘playing to the gallery’ among other sins. Madonsela in response stated that this was a direct assault on her office and independence in violation of the constitution which proscribes any interference in the functioning of her office.

At this stage in proceedings, including the EFF’s interruption of proceedings in parliament two Thursdays ago, we might well ask the essential question: how much more damage can the constitutional instruments designed to combat corruption and rein in the abuse of office withstand, especially from those charged with protecting them?

Long ago, and not in Russia, but from its nemesis ,the United States, ,a famous, independent  voice of warning  sounded in a dissenting judgment against the encroachment of the state pursuing improper  ends . In 1928,  Justice Louis Brandeis wrote,  “Our government…teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.”

Wise and prophetic words in America then and for South Africa right now.



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