How many potential ‘get out of jail’ cards can President Jacob Zuma collect up his sleeve for just in case?
That cynical question seemed to hang, politely unasked, behind another question raised by Justice Edwin Cameron two weeks ago when the Constitutional Court heard applications brought by the Helen Suzman Foundation (HSF) and businessman Hugh Glenister around the constitutionality of the South African Police Service Amendment Act.
“Can the minister [of police] say a category of political office bearers be excluded from investigation [for corruption]?” Cameron asked Michael Donen SC, who represented the ministers of police and justice, and the executive arm of government.
“He can say that,” admitted Donen, “subject to Parliament.”
That concession raised concerns about potential political interference by the police minister, who has the powers to draft guidelines for the Hawks that determine which offences can and cannot be investigated, as well as who exactly can be investigated and who can’t.
The Act was crafted by Parliament in response to the court’s 2011 Glenister judgment, referred to as “Glenister Two”.
That judgment found that the January 2009 legislation that killed the Directorate of Special Operations (the Scorpions) and created the Directorate of Priority Crime Investigation (the Hawks) didn’t allow the anticorruption unit sufficient independence.
The HSF and Glenister were in court because they felt the amendments following “Glenister Two” still didn’t allow the Hawks adequate independence.
The foundation’s concerns included: no security of tenure for the head of the Hawks; that its investigations could be dictated to by police commissioners at provincial level; and that the police minister could determine who, and what, to investigate.
The police minister could, for example, decide – with the compliance of a historically supine national legislature – to exclude a sitting or former president from being investigated by the unit.
This is a serious consideration for South Africa’s body politic, because Zuma has often indicated legal and political intransigence to come clean on corruption charges hanging over him. This goes back to 2005 when his financial adviser Schabir Shaik started fighting his own arms deal-related fraud and corruption charges – which he subsequently lost.
Zuma’s approach in the courts, especially, has been contrary to public protestations that he has been willing to have his “day in court”.
This was evident in the president’s approach to the Democratic Alliance’s (DA) litigation to access the so-called “spy tapes”.
The spy tapes formed part of the record of decision before former acting national director of public prosecutions (NDPP) Mokotedi Mpshe when he dropped the corruption charges against Zuma in 2009.
A few weeks later Zuma was inaugurated as president of South Africa.
The tapes apparently include conversations between former Scorpions boss Leonard McCarthy and former NDPP Bulelani Ngcuka about when to prosecute Zuma.
These helped convince Mpshe that there was undue political interference in previous decisions to charge Zuma.
Last week’s appellate court ruling that the tapes and other internal material from the NPA be handed over to the DA following adjudication by retired judge Noel Hurt is scathing of Zuma’s behaviour during the matter’s circuitous history – largely down to Zuma’s infamous Stalingrad legal approach of fighting on technicalities.
Judge Mohammed Navsa noted Zuma’s failure to file an answering affidavit after the DA was forced to return to the high court to compel the NPA to comply with a 2012 Supreme Court of Appeal judgment that the prosecuting authority produce the reduced record.
Navsa noted Zuma’s “failure” to advance a “logical explanation” as to why the DA should not have the tapes, and that his lawyers were to blame for many of the delays in the affair.
The NPA’s “supine” behaviour, meanwhile, made a strong argument to question its independence, the judgment suggested on several occasions.
The DA needs the record to ascertain whether it can challenge the rationality of Mpshe’s decision. If it is deemed irrational by the courts, corruption charges against Zuma may well be reinstated.
But not, if according to current legislation, the police minister deems that this particular office bearer is beyond investigation and possible prosecution.
Increasingly, there is a sense that Zuma is fashioning almost every facet of South African politics within his influence – from the ANC and Parliament to institutions like the NPA – to ensure the protection of Number 1.
This was obvious when he started his journey to avoid a potential prison term by becoming president in 2009 after being sacked as deputy president by former president Thabo Mbeki.
With the Scorpions investigating him, the ANC’s pro-Zuma faction campaigning for him to become party president at its 2007 national elective conference in Polokwane also pushed for the dissolution of the anticorruption unit.
Despite the Khampepe Commission’s findings in February 2006 that the Scorpions remain within the NPA, and a June 2006 Cabinet statement endorsing the National Security Council’s decision to accept, in principle, Khampepe’s recommendations, the unit’s days were numbered.
The ANC passed a resolution at its Polokwane conference in 2007 calling for the dissolution of the Scorpions – and, with astonishing efficiency, Parliament passed a bill to that effect.
It was signed into law by former president Kgalema Motlanthe in January 2009.
That Parliament has twice created apparently deficient legislation for a corruption-fighting unit is of particular concern.
At the Constitutional Court, Chief Justice Mogoeng Mogoeng described the Amendment Act as “clumsy” and questioned how, if “11 of the country’s top judges” found it difficult reading, ordinary policemen were going to use it practically.
Deputy Chief Justice Dikgang Moseneke expressed exasperation that for an act dealing specifically with fighting corruption, it was “obtuse” and a “maze” to find its core function.
“Why is the mandate [to fight corruption] so diffused … and with the least mention of corruption in all of it?” asked Moseneke.
Cameron merely described it as the stuff of “Alice in Wonderland”.
In its Glenister Two judgment, the Constitutional Court was unequivocal about the threat of corruption: “There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order,” wrote Moseneke and Cameron in the majority judgment.
“It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project.
“It fuels maladministration and public fraudulence, and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights.
“When corruption and organised crime flourish, sustainable development and economic growth are stunted. And, in turn, the stability and security of society is put at risk.”
As Julius Malema’s Economic Freedom Fighters (EFF) suggested two weeks ago in Parliament with their #PayBackTheMoney protest, South Africans should be alarmed by Zuma’s formal obfuscation and an utter contempt for being held accountable: from Nkandla to his relationship with Shaik.
Zuma’s approach has meant an erosion of the independence of institutions like Parliament and the prosecuting authority.
Moseneke stated during the Constitutional Court hearing that these institutions are vital in ensuring untrammeled political power is checked through oversight. Power, Moseneke noted, must be dispersed among as many “good citizens” as possible.
The question hanging over this republic, and echoed by the EFF recently, is how long South Africans can allow their president to compromise these institutions and consolidate power around one person.
Photo Credit: Jacob Zuma at the World Economic Forum in Cape Town in 2009 by Eric Miller