If there are any sentient beings left in the ANC who value the rule of law and are prepared to uphold the Constitution, they should seriously consider whether the President is capable of serving the supremacy of either of these fundamentals of the new order in SA.

For the necessary context, it is perhaps appropriate to begin with the words of the then Acting Director of Public Prosecutions, Molokoti Mpshe, who, in April 2009,  announced the dropping of the prosecution of Jacob Zuma, then newly elected president  of the ANC, on multiple charges of fraud, corruption and racketeering, which the NPA had investigated for eight  years. Adv. Mpshe said:

"I need to state up front that we could not find anything with regard to [the substantive merits of the case against Zuma] that militates against the continuation of the prosecution."

Long before Mpshe spoke, an insight into the fears of then President Mbeki was given by his biographer, Mark Gevisser, who wrote in "The Dream Deferred":

"[Mbeki] was deeply distressed by the possibility of being succeeded by Zuma [as] part of a strategy to avoid prosecution...Mbeki allegedly worried that Zuma and his backers had no respect for the rule of law and would be unaccountable to the constitutional dispensation the ANC had put in place if they came to power... the possibility of a Zuma presidency was a scenario far worse than a dream deferred. It would be, in effect, a dream shattered, irrevocably, as South Africa turned into yet another post-colonial kleptocracy, another ‘footprint of despair' in the path away from the promises of uhuru."

Two of the cases on, or destined for, the roll of the Constitutional Court at present are of particular personal interest to Zuma. The DA's challenge to the decision of Mpshe is pending and could have the result that Zuma finds himself once again in the dock of a criminal court.

The efforts of perennial peace campaigner, Terry Crawford-Browne, to compel the appointment of a commission of inquiry into the arms deals - surely a long overdue step - are also vital to Zuma as the exposure of his role in the corruption attendant upon arms procurements will cramp his style and possibly curtail his political career.

In this context, one would imagine that the President would be thoroughly and carefully advised on what to say and not to say when addressing the leadership of the Courts of the country. Not so, unfortunately. On 8 July 2011, Zuma delivered a keynote address on the occasion of the third access to justice conference in Pretoria, attended by the who's who of the legal world.

This is what he said to the assembled judges and other luminaries, including his appointee as National Director of Public Prosecutions, Menzi Simelane, whose fitness for office and appointment by Zuma will also be under scrutiny in the Constitutional Court ere long:

"The Executive, as elected officials, has the sole discretion to decide policies for the Government. This means that once government has decided on the appropriate policies, the judiciary cannot, when striking down legislation or parts thereof on the basis of illegality, raise that as an opportunity to change the policies as determined by the Executive area of government.

The Executive must be allowed to conduct its administration and policy making work as freely as it possibly can.

The powers conferred on the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections."

The President should know, and apparently needs to be reminded, that the "tyranny of the (elected) majority" is tempered in our democratic order by the constraints of the Constitution. This is the biggest difference between the parliamentary sovereignty of the old SA and the, preferable by far, product of our national accord: a supreme Constitution under the rule of law.

The executive can NOT do as it pleases on matters of policy. Any law or any conduct produced as a matter of policy (dissolving Scorpions, denying AIDS, avoiding payment of judgment debts etc) which is inconsistent with the Constitution is invalid, and it is the duty of the courts to uphold the Constitution by striking down laws and conduct that offend against the principles and values of the Constitution when they are attacked by citizens aggrieved by the said inconsistency.

In the final analysis determining compliance with constitutional principle is the responsibility of the courts: the Constitution means what the courts (not the executive) say it means. The Bill of Rights obliges the state to "respect, protect, promote and fulfil" the rights guaranteed to all in the Constitution. Respect for the rule of law, the tenets of openness, accountability and responsiveness to the needs of ordinary people are all fundamental constraints upon what the executive may properly do.

The public administration is only obliged to execute the lawful policies of the government of the day. This is as it should be in a multi-party democracy in which the public is united in its diversity and committed to promoting the achievement of equality,  to realising human dignity and to enjoying the freedoms guaranteed to all in the search for that "better life".

The President and his script-writer seem to be horribly ignorant of these self-evident and basic tenets of constitutionalism. The country embraced constitutionalism in order to do away with the tyranny of the apartheid regime, which was a racial parliamentary sovereignty. SA has eschewed that form of government in favour of a system in which it is indeed the courts which are trusted to  have the final say in relation to what all other branches of government may or may not do.

If any policy is struck down by the courts, a new constitutionally compliant policy has to be fashioned by the executive and, when laws are needed, the legislature.

There is speculation as to whether the words of the President, quoted above, are to be construed as a shot across the bows of the courts, an attempt to establish hegemonic ANC control over the powers which the courts indubitably exercise in our new dispensation. If they are, expect a bumpy ride ahead, what with the Simelane, Mpshe and the arms deals matters pending in the Constutitional Court.

To make matters worse, the President also displayed breath-taking ignorance of the checks and balances on the exercise of power that the doctrine of the separation of powers is designed to accommodate. The Chief Justice has alluded to "the dialogue" between the branches of government which he says is involved in this doctrine. These are the vastly different words of the President on this topic:

"There is no doubt that the separation of powers must reign supreme to enable the efficiency and integrity of the various arms of the State in executing their mandates. Encroachment of one arm on the terrain of another should be frowned upon by others, and there must be no bias in this regard."

The President would be well advised to ponder the words of section 165(2) (3) and (4) of the Constitution which read:

"The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

No person or organ of state may interfere with the functioning of the courts.

Organs of state...must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts."

If there is any example of our courts trying to make policy or to ignore the separation of powers, the remedy is an appeal to the Constitutional Court. There is no such example in the Constitutional Court's extensive and internationally well respected decisions nor in the jurisprudence developed around its work. The President needs to know this.

Paul Hoffman SC is a director of the Institute for Accountability in Southern Africa.

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