Case proves danger of litigating our way in political impasses
Sound legal basis for Zuma’s review of state capture remedial actions
Opposition parties have enjoyed resounding success in their court bids against the president over his myriad scandals.
But on Friday, the North Gauteng High Court dismissed the DA’s bid to compel President Jacob Zuma to set up a commission of inquiry into state capture as per the public protector’s directive.
It is certain that our politics has become litigious. Courts across the country are inundated with matters that should, under normal circumstances, be resolved in the political arena.
This is dangerous for our young democracy, particularly because of the principle of precedent that is the basis of judicial practice.
When matters political are ventilated through judicial processes there is a potential of making rules out of exceptions.
In the same breath it’s important to acknowledge that this is a result of recalcitrant leaders that have attempted to evade and avoid accountability.
Nevertheless, the precedents set may just come back to haunt us. This is why Judge Motsami Makume’s judgment is so significant.
No doubt, the DA was emboldened by the Constitutional Court’s pronouncement last year, in the Nkandla saga, that the public protector’s remedial actions are binding and that Zuma acted unlawfully in disregarding them.
The difference between then and now is that the president has actually taken the public protector’s remedial actions on review.
It is quite understandable that many of us were cynical when the president launched his review application. He has proved himself quite the master at delaying tactics.
And it is this cynicism that must have informed the DA’s enthusiasm for yet another court case against Zuma.
But the DA could be said to be disingenuous. They could have waited for the hearing of the review application to raise their arguments. Judge Makume highlighted this.
There is actually a sound legal basis for Zuma’s review application. In directing the president to give up his right to appoint the judge to preside over the commission of inquiry into state capture, the public protector has presumed to override his constitutional powers and prerogative. She, of course, did this for good reason. We can’t possibly expect the very person at the heart of state capture to choose the referee.
But her good intentions could set a very bad precedent. As Judge Makume said in delivering his judgment, the review matter raises important constitutional issues that need to be aired in court.
The key question is at what point does the public protector have the power to override the constitutional mandate and authority of the president or any other office? Does the constitution, in fact, empower her to do so?
In a time of crisis like this country finds itself in, it is easy to give in to frustration and despair and try to litigate our way through political impasses.
Given the volume of reports, allegations and evidence pointing to the reality of state capture, the president shouldn’t need to be compelled by the public protector and civil society to take action.
The police and National Prosecuting Authority should have their hands full with investigations into the alleged wrongdoing. But their silence is deafening.
And so political actors turn to the courts. But Judge Makume gives an important caution: “To compel the president at this stage will not only be tantamount to denying him a hearing or his day in court but it may also be understood to mean that the public protector’s powers are unassailable, irrespective of the content of her decision. That cannot be correct.”
In the attempt to break the political impasse precipitated by an administration that has become a law unto itself, we must not make the mistake of undermining and even destroying our democratic edifice.
There is some merit in Zuma’s review, whatever his motives may be.