PRESIDENT ZUMA IS NOT OPPOSED TO ESTABLISHING A COMMISSION OF INQUIRY ON “STATE CAPTURE”

26 MAY 2017

The Presidency has noted recent media reports alleging that President Jacob Zuma is opposed to the implementation of the remedial action of the Public Protector as contained in “the State of Capture” report relating to the establishment of a judicial Commission of Inquiry. This is incorrect.

The President is of the view that some of the remedial actions directed by the Public Protector are irregular, unlawful and unconstitutional. Legal advice obtained pointed at the fact that the remedial action on the appointment of a Commission of Inquiry undermines the separation of powers doctrine. The Constitution gives the power to appoint a commission of inquiry to the President, which she/he must exercise when the President holds a view that a matter of public concern requires such a process.

In the ‘State of Capture’ report, the President is not only directed to appoint a Commission of Inquiry, but he is also directed as to what kind of a commission he should appoint and the process that must be followed in appointing it. This contravenes section 84(2) (f) of the Constitution which leaves it open for the President to choose what type of a commission of inquiry should be established, whether it should be a judicial commission of inquiry or any other commission. The remedial action has made that choice for the President, which is impermissible in law.

Furthermore, section 84(2) (f) of the Constitution leaves it to the President to determine what particular matter of public concern should trigger the exercise of the power to institute a commission of inquiry. The former Public Protector also decided this matter for the President through her remedial action. This, too, renders the remedial action unconstitutional and invalid.

Moreover, the remedial action also directs that the institution of a judicial commission of inquiry in terms of section 84(2) (f) of the Constitution must be presided over by a judge solely selected by the Chief Justice. Nowhere does the Constitution or the Public Protector Act give such a power on a Public Protector or a judge. The remedial action, in its content, therefore has no lawful basis.

The remedial action also confers a power on the Chief Justice to select which judge should preside over the inquiry, a power which the Chief Justice does not have under the Constitution. For this reason the remedial action is unconstitutional and invalid.

Furthermore, the President has, in terms of section 84(2) (f) of the Constitution, the power to determine the timelines for the establishment of the commission and its terms of reference. The remedial action impermissibly dictates when such a commission should be established and its terms of reference. This is irregular and invalid. 

Finally, the decision underpinning the remedial action, which is to outsource it, is irrational since the only conceivable deduction to be made is that the former Public Protector’s term of office was coming to an end and she was unwilling for the Office of the Public Protector to continue with the investigation outside her control.

None of the grounds set above for the President’s application for review of the Public Protector’s report suggest in any way that he is opposed to the establishment of the Commission of Inquiry. What is at stake is the interpretation of the Constitution on a matter as fundamental as the powers of the Head of State and Government and the relationship of the executive branch with other branches.

The review challenge is therefore aimed at clarifying and strengthening our constitutional jurisprudence on the roles of the Executive, the Judiciary and Chapter 9 institutions.

Statement issued by Dr Bongani Ngqulunga, The Presidency, 26 May 2017