U-turn on OPP driven by self-interest
TRUE to form, President Jacob Zuma has applied for a judicial review of the “State of Capture” report . He bases his objection on constitutional grounds. In recommending that a judicial commission be appointed the then public protector, Thuli Madonsela, acted unconstitutionally, the President tells us.
She not only sought to usurp presidential powers, but also to dilute the authority of the Office of the Public Protector (OPP).
Effectively, the president says he’s rising in defence of the Constitution, against Madonsela, whose recommendations, were they to be followed, would denigrate both the Presidency and the OPP.
For someone of his record, Zuma’s argument is obviously ironic. He purports to be a constitutionalist, while painting the much-revered Madonsela as the offender.
Ridiculous as Zuma’s argument sounds, the President still managed to make points that are worth probing.
This is an apt case to illuminate the pitfalls of the naivety that guided the drafters of our Constitution.
They conceded more powers to the president, over the representative and collective body that is parliament.
According to former deputy chief-justice Dikgang Moseneke this was informed by an assumption that the Presidency would always be occupied by a virtuous figure, deferring to institutions in order to enhance their supremacy.
The gist of Zuma’s argument therefore, is not entirely wrong.
What interests me is not only the constitutional principles the President raises, but also how he has written his affidavit.
Almost a third of the submission focuses on the process followed by Madonsela in compiling her report.
While the President provides useful details about his interactions with Madonsela, his intention is really to inform us that she treated him unfairly.
That’s what explains his assertion that “the Public Protector finalised the report without any input from me”.
While nine of Zuma’s 37-paged application are dedicated to these interactions with Madonsela, her purported “unfairness” does not form the basis of his request for review.
This is not an oversight. It is simply that the claim doesn’t hold.
As the president himself tells us in his review submission, he was given several opportunities to respond to the allegations. On October 1 2016, for instance, he admits to receiving “more details on the investigations and the allegations levelled against me in order to adequately prepare for the meeting”.
That meeting took place six days later on October 6. But instead of answering questions, Zuma asked for a postponement so that he could be “provided with the relevant documents and records and where necessary be allowed to question the persons who had provided information to the office of the Public Protector”.
In other words, before Madonsela completed her report on October 14, Zuma had 13 days to make an input to the public protector. And he knew of the allegations even before Madonsela started her formal investigation in April 2016.
The reason for wanting more time, as the President explained, was because Madonsela’s questions “were varied and required more extensive information from me. Also, some of the information required from me, dates back to 2009 and would require me to first establish what transpired before I am able to meaningfully answer the questions”.
But, did it really require more than 10 days to remember if he had called Themba Maseko instructing him to help out the Guptas; or meeting Vytjie Mentoor at the Gupta residence, where she complained to him about one of the brothers offering her a ministerial post?
The fact is Zuma simply did not want to respond to Madonsela’s answers.
And he knew that telling the court he was not afforded sufficient time to respond would be exposed as a farce.
What he’s hoping for however, is public sympathy on account of a feigned sense of unfairness by Madonsela. But how does anyone sympathise with a serial offender who has no sense of shame?
This betrays some form of self-delusion or a persecution complex on the part of the president.
Self-delusion aside, Zuma’s reference to the Constitution is worth considering.
He’s right that the Constitution confers powers only to the President to appoint a commission. And he feels this is his strongest defence, to a point of gloating.
Not only should he be the one to appoint a commission, Zuma tells the Court, but also the one to decide when, to write the terms of reference and choose who heads it.
As the authority who is empowered to do so, Zuma says he sees no need to appoint one and to do so “will just be rubber stamping the desires of the Public Protector”.
Perhaps even more noteworthy about Zuma’s submission is the assertion that, contrary to popular belief, Madonsela’s recommendation serves to “weaken the powers of the Public Protector”.
Findings by a commission are not binding whereas the public protector’s do have a binding effect.
Here Zuma, who was dismissive of the public protector’s powers earlier this year, purports to be a fervent supporter of that office.
He writes: “The Public Protector is the only institution that has wide powers to ensure that complaints are investigated in terms of the Constitution and the Public Protector Act. A remedial action which instructs that a complaint laid with Public Protector’s office should instead be investigated by a judicial commission of inquiry improperly does violence to the provisions of the Public Protector Act.”
The Republic is facing a dilemma. In granting the president sole powers to appoint a commission, the drafters of the constitution never imagined that this prestigious office would one day be inhabited by someone as flawed as Zuma.
Instead of facilitating a probe into impropriety, he is instead the cause of it.
A commission must probe him, the Head of State.
We have an unusual case here. This also means the president’s insistence on appointing a commission is not logical in this particular case. Whilst the Constitution does grant him such powers, the eventual result of him doing so may be concealment, instead of uncovering the truth.
Any court would be alert to such possibility. After all, constitutional principles do not have an independent value, but are important to the extent that they enable a just and ethical outcome.
It would be folly of any judge to grant Zuma’s request simply because the Constitution says only the president can appoint commissions. The question that judges must grapple with, therefore, is: what is the best way to uncover the whole truth about the state of capture?
We will never know the truth if the accused appoints the commission and sets its terms of reference.
To avoid complicity in a cover-up the court may consider having the present public protector, Busi Mkhwebane, as Zuma advises, continue the investigation.
That consideration would make sense. But, in its reconstituted form, does the Office of the Public Protector have the capacity to undertake a thorough investigation? One that would be time-consuming, require more financial resources and personnel. Mkhwebane doesn’t seem to have either. She doesn’t want consultants or donations, while operating with a lean staff and inadequate funds. That casts doubt on the ability of the public protector to undertake a thorough probe.
This is a tough one for the Gauteng High Court. But judges are determined to punish individuals for abusing state resources and the Chief Justice Mogoeng Mogoeng is firm on ethical leadership.
For the court, Madonsela’s recommendation may just prove too persuasive.
Mcebisi Ndletyana is associate professor of politics at the Institute for Pan African Thought and Conversation, University of Johannesburg