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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