“This is a dangerous time, in a delicate year,” President Jacob Zuma’s legal counsel, Jeremy Gauntlett SC, observed on Tuesday at the Constitutional Court.
“It would be wrong for this court to be inveigled into a position of making some form of wide, condemnatory order, which will be used, effectively,… for an impeachment [of the president] in parliament.”
Gauntlett had, earlier, made staggering concessions in the case brought against the president by the Economic Freedom Fighters (EFF) to compel Zuma to pay back portions of the almost R250-million from the national fiscus splurged on his private residence at Nkandla in rural KwaZulu-Natal. The recommendations to #PayBackTheMoney relating to items, like an amphitheatre and cattle kraal with culvert, which were not security-related, had been made by Public Protector Thuli Madonsela in her 2014 report, Secure in Comfort.
The president had spent almost two years evading Madonsela’s proposed remedial actions with the mazy political jigga-ing and side-stepping usually associated with football dribblers like Steve Lekolea and Leo Messi – or when “Number One” himself jives for the nation’s amusement and amnesia.
Zuma had obdurately questioned how bound he and the national assembly were by Madonsela’s recommendations. A supine parliament set up an ad hoc committee which “second-guessed” the public protector’s recommendations rather than interrogating the president’s actions (the latter is what parliament is constitutionally obliged to do).
Following his own internal investigation proposed by both parliament and the president, police minister Nathi Nhleko reported that Zuma had nothing to pay back. Sweating like a nervous first-time cottager in a Durban public toilet, Nhleko released his report with an accompanying music video to the strains of ‘O Sole Mia – imagery as farcical as a Monty Python skit.
The minister, and a parliament stacked with sycophants who owed their seats to Zuma’s cunning consolidation of his power-base within the ANC, contorted themselves into protecting “Number One”. Madonsela’s remedial action were merely recommendations to be considered, not binding, they had crowed during a process which Chief Justice Mogoeng Mogoeng had described on Tuesday as a “whitewashing” of the matter.
Zuma then threw his lackeys under the bus at the Constitutional Court. In a last-minute about-turn his lawyers admitted that the public protector’s remedial action was indeed legally binding – Zuma had effectively admitted to wasting the time (and money) of parliament, government and the nation for two years; during which he had been violating the Constitution and its values – which he had sworn to uphold.
An eleventh hour tactical change that left lawyers for both parliament and Nhleko with little time to amend their arguments. They squirmed and flailed about, attempting to explain their actions to the justices of the Constitutional Court. It was brutal courtroom drama, compelling but discomfiting.
Mogoeng asked Advocate Lindi Nkosi-Thomas SC, counsel for the national assembly’s speaker, Baleka Mbete, whether parliament’s function, on receiving Madonsela’s report, was to hold the president to account “rather than conduct an investigation designed to show that the public protector was wrong?”
Nkosi-Thomas argued that parliament’s ad hoc committee report had been designed to “scrutinise” the report, rather than merely “rubber-stamping” it, before acting. The public protector, she contended, “cannot dictate to parliament” – certainly not in the manner that Zuma had appeared to during the debacle, presumably.
Mogoeng pursued the line of questioning. As did Justice Mbuyiseli Madlanga. Nkosi-Thomas grew increasingly flustered, responding while justices were still putting questions to her, causing Deputy-Chief Justice Dikgang Moseneke to reprimand her: “Here, we speak one person at a time.”
Justice Edwin Cameron continued to probe the legal reasons for parliament’s failure to perform its oversight function on “the president’s responses to the [public protector’s] remedial action if it is binding” as had been conceded earlier in the day by Gauntlett, despite the previous two years of denialism by the president.
There was a long silence. Finally, Justice Sisi Khampepe intervened with another question. And so it went on, Nkosi-Thomas attempting to explain what was, essentially, unlawful action by parliament that appeared to have been instigated by the need to protect Zuma. An approach that Zuma himself had disavowed only recently.
Advocate William Mukhari, appearing for Nhleko, conceded that the police minister’s investigation into Nkandla following the release of Secure in Comfort was unlawful and that it should be set aside following questioning by Moseneke.
The deputy-chief justice probed why Nhleko had agreed to conduct the investigation if it was unlawful and whether it was an instance of the police minister knowing “that this is all unlawful, but I will do it because you [the president] instruct me to”.
Mukhari was flummoxed, suggesting that Nhleko “may or may not” have followed that (il)logic but that he “cannot say”. “Lets step away from that proposition,” Moseneke responded, describing it as a “very dangerous one… that a state official acted unlawfully” at the insistence of a superior with scant regard for the law.
“You’ve made the concessions, but you say ‘Please don’t go there,’” Moseneke observed.
The Constitutional Court, rebuilt on the site of the notorious Old Fort prison and using thousands of bricks from that structure to symbolically reflect a nation reborn is an open, transparent architectural phenomenon. Dappled sunlight streams through glass in its ceiling, lending it an air of gravitas, its curved shape and pavement-level glass windows create a sense of inclusion between the outside and inside akin to architect Frank Lloyd Wright’s Falling Waters. During several socio-economic cases heard at the court it would be common to see the feet of protesters from social movements and grassroots community organisations whose lawyers where arguing inside, marching up and down outside.
The building is inclusive and transparent in a manner that is in keeping with the court’s role and the tenor of the Constitution.
United States Supreme Court Judge Ruth Bader Ginsburg noted that it “is fitting that the judicial guardian of [South Africa’s] Constitution, the Constitutional Court, is housed in a building notable for its accessibility to the public, as the court itself is… Empty cells, barbed wire and some of the artwork serve as reminders of past tears and travail, and the long struggle for freedom. Overall, however, the building’s design expresses high hope for, and the abiding faith in, ‘a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.’ The Constitution, Court building and the artwork share an animating theme: ‘Everyone has inherent dignity and the right to have their dignity respected and protected.’”
“Approaching the building,” Bader Ginsburg noted in a pamphlet about the art at the Constitutional Court, “one sees on the facade the Court’s name, in bright colours, in the many tongues spoken in South Africa. The arrangement conveys to the entrant: whatever your race, language or station, you are welcome here. Inside, the talent and spirit of the nation’s artists and crafters combine to create a brilliant homage to what South Africa is becoming: ‘a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law.’”
Yet, on Tuesday, there were no ordinary South Africans singing and dancing around the court – despite the large presence of EFF supporters. No easy access to this most accessible symbol of the nation’s egalitarian spirit.
Instead, in a flashback to the 2012 Marikana massacre when 34 protesting miners were shot dead by police, barb-wire corralled thousands of EFF supporters away from the precinct.
Police in riot-gear kept watch. Their presence reflecting an aspect of the president, the ultimate upholder of the Constitution, as Madonsela noted in her report, that is anathema to the Constitutional vision: that he would rather lead a securo-state, opaque in its machinations, militaristic in its response to citizens’ concerns and outrage, than a transparent and accountable one.
This was clearly evident again at the State of the Nation address in Cape Town on Thursday evening as security was heightened and barb-wire rolled out an image of a military junta, and a nation at war with itself, rather than a peaceful democracy. Police clashed with protesters in the streets of Cape Town, the ANC-aligned Seskhona People’s Rights Movement faced off against EFF supporters and inside parliament Zuma’s soporific speech was relentlessly disrupted before MPs from the Congress of the People (Cope) and the EFF eventually left the house in disgust.
This year’s disruptions did not cause the televising of the event to be jammed – as had happened in 2015. But it is clear that a president who had spent much of his struggle year’s running internal intelligence for the ANC refuses to transform from a spy to someone imbued with the values of a progressive Constitution. Fittingly, Zuma’s praise singer, who accompanied his entrance to parliament on Thursday, referred to him as the “chief of intelligence”.
This friend of Vladimir Putin, the Russian president and former KGB operative, inhabits a world of shadows, far from the sunlight cast by the Constitution – and would have his government do the same.
Zuma’s dogged two year refusal to accept the public protector’s remedial action and his in-court legal about-turn which discarded his stooges in parliament and cabinet were further indicative of his self-preserving instincts and made clear his ethical priorities: These do not include the Constitution and its values, which he had sworn to uphold and protect. Nor is he overly concerned with the transparent, accountable and independent-minded functioning of government – merely in his own security (from potential impeachment or future prosecution on fraud and corruption charges) and comfort.
This is indeed a delicate time, in a dangerous year – as every other during Zuma’s presidency will be.
Photo: President Jacob Zuma at the World Economic Forum (WEF) on Africa, courtesy of the WEF