Zuma putting stress on our constitutionalism
SHORTLY after the violent removal of Economic Freedom Fighters MPs from the National Assembly, President Jacob Zuma celebrated with his trademark giggle.
He would later joke in Zulu and giggle again – saying those who had left the chamber were missing out on the progress his government was making.
Zuma was unperturbed that he had made history by being the first president to address a joint sitting with scattered red makarapas, broken benches, thirsty MPs, empty official opposition benches and a jammed cellphone signal.
His speech was punctuated by giggles, typically at his own expense, after misreading words like the name of the new state-owned pharmaceutical company. Did the president think what had just happened was a laughing matter?
After the interruption, he continued to read his prepared speech. I was drawn into his reference to former president Nelson Mandela ’ s legacy: “We continue to be inspired by Madiba and draw lessons from his legacy as we build our country.”
I wondered whether Zuma believed in his own words.
Did he think what Mandela would have done to address concerns of the aggrieved opposition before the sitting of parliament or just before the violent ejection of MPs? Did he not think what happened in front of him warranted immediate assurances to the nation that he respects the public protector as he is bound by the constitution to do?
In 2001 Mandela remarked that the constitution of the Republic permits South Africans to build a nation based on the democratic values of human dignity, equality and freedom “through constitutionalism and the rule of law ”.
In simple terms, the rule of law means the president of the country, who has access to state resources, and the street beggar who has access to nothing but the torn pants that cover his bodily dignity, are equal before the law.
Constitutionalism is the unquestionable belief in the supreme law of the land.
Mandela ’ s edifice for nation- and state-building was very clear: constitutionalism and the rule of law.
This edifice is under stress. Zuma is no less a contributor to the stress than the violence we witnessed in parliament.
By using his position to politi-
– cally discredit the findings of public protector Thuli Madonsela on Nkandla and allowing parliament, not a court of law, to effectively set aside the recommendations to pay back a portion of the nonsecurity spend, Zuma got the edifice crumbling.
You can ’ t expect the institutions anchored on that edifice to remain unshaken. Now we are governed by a combination of parliamentary chaos, executive ineptitude, meddling in state institutions and judicial sobriety.
Should the latter follow the trend – God save us! – that would be the end of the constitutional state based on the rule of law.
Ironically, parliament sowed the seeds of chaos by defying its own precedents. In 1998 parliament forced then minerals and energy minister Penwell Maduna to apologise for questioning the integrity of an audit report compiled by auditor-general Henry Kleuver.
This was after then public protector Selby Baqwa investigated Maduna ’ s conduct and found that by attacking the auditor-general, a Chapter 9 institution like the public protector, he acted unconstitutionally.
A few years later, Maduna, this time as justice minister, and prosecutions boss Bulelani Ngcuka apologised for attacking public protector Lawrence Mushwana.
Mushwana had found Ngcuka guilty of prejudicing Zuma following his statement that there was evidence of corruption against the latter but that he wouldn ’ t prosecute him.
Zuma was a complainant in that case and should know the importance of defending the public protector – not only when the institution rules in his favour.
As in the case of the auditorgeneral, parliament correctly stood by the findings and independence of the public protector in the Zuma complaint.
The overturning of these precedents in the manner in which Zuma and parliament reacted to the Nkandla report was bound to cause upheavals in the state system.
We are witnessing the consequences of the ANC abandoning its own good judgment showed in handling public protector reports previously.
This has given the opposition reason to unprecedentedly act in undesirable and disruptive ways to enforce accountability.
But in the minds of opposition MPs there is nothing more grave not least asking questions at the wrong time – than the president disobeying a Chapter 9 institution.
In response, parliamentary officials are desperately enforcing undemocratic practices. The legislature ’ s operations including clandestine measures like jamming cellphone signal and training an army were all tailored to manage Zuma ’ s appearance.
Of course, illegitimate public conduct can only be successfully enforced through illegitimate means.
Such Draconian measures are totally unsuitable in an environment where robust debate should be the order of the day.
We must not fool ourselves. South Africa is a country at war. It ’ s a war about how best to live by the constitution and the rule of law even when its provisions go against the material interests of the president.
Thandi Modise, who co-chaired the proceedings, made a very interesting remark during the chaos that neither the current rules of parliament nor voters anticipated something like this. She was right.
But what was also never anticipated was that the rules of parliament and the constitution could be subject to a stress test by the president of the country.
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