HANDS OFF THE JUDICIARY!
Over the years, President Jacob Zuma has interfered with various public bodies and offices in a bid to consolidate his position. Is the country’s judiciary next?
agame of political Russian roulette is playing out in South Africa and the danger here is complacency and accepting that “trigger-happy” politicians are the new normal. This game has many facets. In December 2015 it was the economic and political horror of the so-called Nenegate. Much damage was done as the country teetered on the edge of a precipice we would return to again and again.
Public Protector under threat
Fast forward to 2016 and the highest court in the country had to confirm the constitutional powers of an institution which in this age of impunity arguably has become one of the most important buffers against state looting and mismanagement – the office of the Public Protector.
Two key investigations by this office provided kindling for the political veldfire that broke out – the investigation into the security upgrades at Zuma’s private home at Nkandla and into allegations of state capture.
The vital role this office plays in the fight against corruption is undeniable. Yet Advocate Busisiwe Mkhwebane, who took over from Advocate Thuli Madonsela as Public Protector, has already made some moves that suggest she has a “softer” approach to certain issues. She is dragging her feet on the issue of whether her office will oppose the president’s review application of the state capture report. Is this line of defence also on borrowed time?
Other agencies under threat
Since Nenegate there have been various attempts to gain access to the keys of the state coffers, including the laying of trumped-up charges against finance minister Pravin Gordhan. Again the country’s fiscal sanity was almost lost and law enforcement agencies like the Hawks and the National Prosecuting Authority (NPA) seemingly sacrificed independence for the sake of political expediency – something both deny.
The charges were eventually withdrawn amid calls for the head of NPA boss, Advocate Shaun Abrahams. Another crisis averted. South Africans “survived”. So did Abrahams, apparently, with the president recently announcing that Abrahams and the two prosecutors who laid the charges against Gordhan would not be suspended. Again we wait to see what the spin of the political revolver’s cylinder brings, while the president giggles his way through with impunity.
Currently there is uncertainty regarding the payment of social grants to almost 17m South Africans. This time the Constitutional Court was cornered to approve a new contract with a service provider it already made serious findings against.
SA has been forced to bend the knee many a time, but now the ANC appears to be playing Russian roulette with the biggest block in its own support base – the rural poor and marginalised.
Moving against Zuma’s opponents
In the past few weeks the revolver was aimed at what can be called the last bastion of sanity in a country where political leaders’ decisions mostly fail the legal test of rationality – our courts and who may preside in them.
These are the very institutions that have (to borrow from Rudyard Kipling) been keeping their heads when all about them are losing theirs. The president recently announced his decision to replace three members of the Judicial Services Commission (JSC) – the body that decides who will serve as the country’s judges. Advocates Dumisa Ntsebeza SC, Ishmael Semenya SC and Andiswa Ndoni will be replaced.
The EFF has labelled this decision as “unprovoked” and an “attempt to capture the judiciary”. Of course, it is the president’s right, under the Constitution, to appoint whomever he wants to the JSC but amid allegations of state capture and 783 charges hanging over his head, it would be politically naïve to simply take decisions at face value. Every decision points to the fact that a larger game is playing out. Designating the “right” people to the one body that decides on who gets to make court rulings only makes sense in the game of political and personal survival.
At least two of the names of those to be replaced are among the country’s top jurists. Some media have called Ntsebeza one of “the three legal ‘giants’ who fought to bring [South Africans] the state capture report” amid attempts by the president and later at least two ministers (Des van Rooyen and Mosebenzi Zwane) to oppose its release to the public. Ntsebeza represented the EFF. He also represented Marikana victims and earned the ire of the presidency when he questioned the process and outcome of the Farlam Commission into the Marikana tragedy.
Semenya recently went against the president, so to speak, in his legal opinion on the Financial Intelligence Centre Act (Fica). The president sent the Fica Amendment Bill back to Parliament citing issues of constitutionality. Semenya refuted this. In 2016 he also represented EFF leader Julius Malema over his utterances that “the Gupta brothers should leave the country”. He reportedly also said: “South Africa was not for sale over a plate of curry.” The court granted the order that Malema should refrain from insulting or threatening the Gupta family. So the president may giggle, but he doesn’t forget – especially not those who in any way do not toe the line that ensures the insulation of his power and protects those close to him. Spinning the cylinder and aiming the gun at the judiciary will have dire consequences for our democracy. And this is the one buffer we can least afford to lose.
Spinning the cylinder and aiming the gun at the judiciary will have dire consequences for our democracy.
Dumisa Ntsebeza Outgoing member of the Judicial Services Commission
Busisiwe Mkhwebane Public Protector