System working despite the Zuma state capture saga

ONE of the distinguishing features of a democracy is the separation of powers into three distinct branches of government.

These are:

The Executive which governs the country. The head of the Executive is the president.

The Judiciary ensures that laws are implemented.

The Constitutional Court is the apex court and the guardian of the Constitution. It has the authority to finally uphold or declare invalid any law or action that is not in line with the Constitution.

The legislature is tasked with involving the public in its processes, making laws and holding the Executive accountable through interrogating and approving budgets of the government departments and its entities.

Each branch therefore has its separate and unique powers that others should not infringe upon. However, an overlap is allowed when it is justified.

The purpose behind the separation of powers principle is to avoid power being centred within one institution and to make a decisive break from the unchecked abuse of State power and resources that was virtually institutionalised during the apartheid era. A system of checks and balances is created.

With the above in mind, in October 2016, the public protector issued a report, State of Capture: Investigation into improper and unethical conduct by the President and state functionaries in their relationship with the Gupta family.

In January 2018, on the recommendation of the report, then president Jacob Zuma established the Commission of Inquiry into allegations of corruption, State Capture and fraud in the public sector and organs of state.

The commission had to investigate matters of public and national interest on whether government machinery was being remodelled to allow the Gupta family to influence government in order to obtain tender contracts. The president appointed Deputy Chief Justice Raymond Zondo to chair the commission.

In the course of its business, Zuma appeared before the commission in July 2019. It appears that since then, the commission has struggled to get the former president to attend and answer questions.

A summons was eventually issued in October, 2020. However, when the summons failed to ensure the former president’s attendance, the commission approached the Constitutional Court directly to compel Zuma to appear.

The commission argued on the basis of urgency, in that it was running out of time and that approaching a

lower court would have caused delays that would have affected the timelines around which it needed to finish its work.

The Constitutional Court ordered that the former president must appear and give evidence. The court also stated that there is an obligation on the part of the witness to remain in attendance until proceedings are concluded.

A breach of this duty constitutes an offence in terms of section 6 of the Commissions Act.

It was further pointed out that the commission was not a criminal trial, nor was Zuma an accused, detained or arrested person. Therefore, could claim the right to remain silent in terms of section 35 of the Constitution. As a witness at the commission,

Zuma could have claimed privilege to self-incrimination in terms of s3(4) of the Commissions Act.

This, however, is not a blanket privilege. The ex-president would have to claim the privilege and then demonstrate how the answer would incriminate him.

A statement, dated February 15, 2021, issued by the Jacob Zuma Foundation, pointed out that Zuma was not defy the law “but a few lawless judges who have left their constitutional post for political expediency”.

A further statement issued on March 25, 2021, stated that Deputy Chief Justice Zondo had made “all sorts of untruthful and selective averments” and that the Constitutional Court was biased against him.

It is doubtful that Zuma’s course of action will have serious implications for the Constitutional Court. The reasoning behind the court order is reasonable and justifiable.

It does, however, have serious implications for the work of the commission. The aim of the commission was also to help the public understand what had happened.

According to the evidence leader, advocate Paul Pretorius, Zuma is mentioned in three of the terms of reference of the commission and 40 witnesses, under oath, implicated him in corruption.

Zuma was the sitting president during the period under review.

His knowledge and information was therefore crucial, not only to the work of commission but citizens as well. He could have questioned the witnesses and led his own evidence. The public would have wanted to hear what Zuma had to say. South Africans are the biggest losers here.

Defying the court order is an offence. The consequence of possible incarceration of Zuma will have more implications for the ruling party. He is a senior political leader with much influence in his political party. It could therefore entrench divisions, factions and views about the judiciary.

One can, however, cautiously argue, that the system of checks and balances appears to be working.

Soon the commission will hear the views of Parliament on this matter. Was Parliament aware of what was going on? If so, why did they not conduct oversight and hold the executive accountable?

These are important questions as the legislature is the arm that oversees what government is doing, approving its budgets and, ultimately, the power to impeach the president. It is recommended that the commission considers whether this check in the system is working optimally. If not, then state why that is the case and make recommendations to improve it.

Jacob Zuma