THE CONSTITUTION, THE RULE OF LAW AND MR ZUMA

The National Prosecuting Authority's (NPA) decision last week not to proceed with the prosecution of Mr Jacob Zuma may be identified by future historians as the point at which South Africa began to stray from the rule of law.  In essence, the rule of law requires that all citizens should be equal before the law and that everyone should acknowledge the supremacy of the law.

The NPA's announcement cannot be seen in isolation. It followed the ANC's decision at Polokwane to abolish the NPA's Directorate of Special Operations (the Scorpions); President Motlanthe's questionable dismissal of the previous National Director of Public Prosecutions (NDPP), Adv Vusi Pikoli; the transparently engineered early release from prison of Mr Schabir Shaik; and Mr Zuma's comments last week on the Constitutional Court.

The cumulative effect of these developments has been to raise serious doubts regarding the continuing independence of the NPA and the continuing supremacy of the rule of law. There is serious reason for concern that powerful political leaders - and not the NDPP - will in future determine who will be, and who will not be, prosecuted. All this opens the way to impunity for those who control the government.

Despite allegations that they were politically manipulated, the Scorpions fearlessly and effectively investigated fraud and corruption involving senior politicians and public servants - including Schabir Shaik, Mr Zuma, the so-called Travelgate MPs and Commissioner of the SAPS, Jackie Selebi. Their abolition was one of the priorities of the ANC's Conference at Polokwane.

Adv Pikoli manifested his independence and integrity when he refused to bow to presidential pressure with regard to the prosecution of Commissioner of Police Selebi. The Ginwala enquiry - which was appointed by President Motlanthe as part of the dismissal process - found that he was a fit and proper person and recommended that his services should be retained. Nevertheless, President Motlanthe and parliament proceeded with his dismissal.

This sorry descent from the rule of law has part of its genesis in the ANC's National Democratic Revolution ideology of establishing hegemony over all the institutions of the state including "the legislatures, the executives, the public service, the security forces, the judiciary, parastatals, the public broadcaster, and so on."
This approach has gone hand in hand with the accelerating deployment of loyal cadres into key positions in the public service, the parastatals and the private sector. It is totally at variance with the Constitution which states that "No employee of the public service may be favoured or prejudiced only because that person supports a particular political party or cause." Our courts have ruled unambiguously against the practice of cadre deployment.

The single most important bastion of our constitutional system is the judiciary. It, too, is under pressure. At the end of 2005 the government introduced a constitutional amendment that would have seriously restricted the independence of the judiciary - but which was withdrawn in 2006 after it encountered virtually universal opposition in legal and political circles. However, one of the Polokwane resolutions called for far-reaching reforms of the judiciary that would apparently include elements of the withdrawn constitutional amendment.

It is against this background that Mr Zuma's comments last week on the Constitutional Court must be considered. Among other things, Mr Zuma is reported to have said ‘If I sit here and I look at the Chief Justice of the Constitutional Court, that is the ultimate authority. I think we need to look at it, because I don't think we should have people who are almost like God in a democracy...Why? - Are they not human beings?' Mr Zuma also stated that the Judicial Service Commission should review the status of the Constitutional Court.

Mr Zuma's remarks go to the heart of the problem: in our constitutional democracy the Constitution is supreme - and not the President, the government of the day or the ruling movement. It is the responsibility of the Constitutional Court to uphold and to interpret the Constitution. Judges are chosen with the greatest care through an objective and reasonably independent process because they are "appropriately qualified" and because they are "fit and proper persons." They are not - and have never claimed to be ‘gods' - but they are eminently better qualified to pronounce on constitutional issues than partisan politicians.

The ANC's deviations from the rule of law have led to a flurry of legal challenges which will drag the courts further into the political arena. Any one of these challenges might succeed - with parlous potential for unleashing a serious constitutional crisis. The best way to avoid this would be for the government to ensure that its actions and policies are scrupulously in line with the Constitution.

When Mr Zuma becomes president - if, as expected, the ANC wins the election - he will have to swear an oath that he "will obey, observe, uphold and maintain the Constitution and all other law of the Republic." A core element of that Constitution is that "the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice."

Mr Zuma is an affable and astute politician. He may or may not become a good president. However, whatever his performance he must accept that he is subject to the law and to the Constitution. Recent developments affecting the NPA and his remarkable comments on the Constitutional Court raise serious questions in this regard. An enormous amount is at stake: the Constitution is the foundation for our national unity: without it we will disintegrate. It is the assurance of our rights and freedoms: without it we will descend into the mire of ‘Big Man' politics that has blighted so many other countries in Africa.

I call on Mr Zuma, with all due respect, to consider seriously the oath of office that he will be required to take if he becomes President of South Africa.

In keeping with that oath, I call on him to observe the spirit and letter of the Constitution in all his actions and decisions as President.

In particular I call on him to end fundamentally unconstitutional attempts to establish party political hegemony over the institutions of the state and society; and to put an immediate stop to the illegal practice of cadre deployment.

I call on him to do nothing that will prejudice the independence and dignity of the judiciary.

I call for a moratorium on the appointment of a new NDPP until the appeal of Adv Pikoli has been heard.

Thereafter, I call on the government to adopt the recent suggestion of President Motlanthe that the next NDPP should be appointed by some independent and objective process, akin to the process by which judges are appointed.

I call on the government to respect the independence of the NPA and to ensure that the unit that will be established within the SAPS to replace the Scorpions will be visibly independent, impartial and effective; and finally

I call on all South Africans to consider the critical importance of preserving our Constitution when they cast their votes next Wednesday. The Constitution provides the best assurance for the protection of our rights and freedoms and for the preservation of our national unity.

Issued by the FW de Klerk Foundation, April 16 2009

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