Constitutional Hill

Scorpions

An “activist” judgment?

Sep 15th, 2008
by Pierre De Vos.
77 comments

The first rumblings are being heard about the judgment handed down last Friday by judge Chris Nicholson in which he found that the NPA should have afforded Mr Jacob Zuma the opportunity to be heard before he was re-charged. Mr Zuma’s supporters might well interpret criticism of the judgment as sour grapes or as more evidence that they are not the only one’s to undermine respect for and the independence of the judiciary through criticism and threats.

But there is of course a huge difference between informed and principled criticism of judgments on the one hand, and personal attacks on the politics of certain judges or threats against the judiciary on the other. So there is nothing wrong with dissecting the Nicholson judgment to see whether an appeal court may not come to a different conclusion. When doing so, critics must be careful though not to suggest that the decision was taken for expedient political reasons.

An analysis in today’s Business Day skirts close to the edge on this score. The article notes as follows:

The legal experts suggested that the reason Nicholson decided to take this interventionist route was in order to find a clear-cut legal solution to a political dilemma crippling the country and threatening the independence of the judiciary.

This was the question of whether the corruption trial against Zuma should go ahead or whether a “political solution” should be found to allow Zuma to assume the role of president without criminal charges hanging over him. Opponents of this approach said it would fatally undermine the rule of law.

The legal experts said the judgment could be understood as a very pragmatic intervention by the judiciary to “make the Zuma trial go away” in order to protect its independence and ensure that it retained the power to intervene in other matters. “If there is a fight between the ANC and judiciary to the bitter end there can only be one winner and that won’t be the judiciary,” one said.

The lawyer said that for short-term political reasons the judgment was clearly good “because it puts a stop to what was becoming very ugly and at least it is a judge who does it, not politicians, and that is probably the best way out”.

“The judicial system has put a stop to the whole trial, which is good and good for the judiciary. The fact that it was a white judge may start getting people to think that the output of the judiciary is not entirely determined by race. Transformation of the bench is a much more complicated matter than the necessary but not sufficient condition of race,” he said.

As someone who really thought the judgment would go the other way – based on the text of the Constitution and the NPA Act – I might not be the best person to evaluate the correctness of the legal arguments in the judgment, but one or two legal moves by judge Nicholson will definitely raise eyebrows amongst those legal eagles who closely follow this kind of thing.

Judge Nicholson found that the decision to prosecute Mr Zuma must be assumed to have been taken by the Scorpions – although the National Director of Public prosecutions (NDPP) clearly was involved with this decision. This is because if the NDPP “was to properly exercise” his powers to review decisions by Provincial Directors of Public prosecution to prosecute or not prosecute anyone, it must be assumed that he did not take part in this decision – otherwise it would nulify his independence required to review the decision later.

This is quite a dexterous and innovative deployment of legal logic to get to where the judge wants to go, and I am not sure a higher court will come to the same conclusion. This is because his “finding” is clearly contradicted by the actual facts as the NDPP did make the decision to prosecute Mr Zuma.

Secondly, because the NPA Act was drafted before the creation of the Scorpions, it does not mention the right of the accused to make representations to the NDPP in the event of him reviewing the decision by the head of the Scorpions or in the event of him reviewing an earlier decision by himself or his predecessor. According to judge Nicholson this was self-contradictory and even absurd because the crimes investigated by the Scorpions are often far more serious than those prosecuted by the Provincial DPP’s.

Even where the original decision was made by the NDPP himself, it would be absurd if a later decision to prosecute or not to prosecute was also not subject to the requirement to afford the accused the opportunity to make representations for the same reasons that the NDPP would only get involved in original decisions of this kind in situations where very serious crimes are involved.

Judge Nicholson therefore read words into the NPA Act to change the meaning of the Act so that from now on whenever the NDPP or the Deputy NDPP (like the one heading the Scorpions) review a decision to prosecute, the accused will also have a right to make representations before a decision is taken.

This is a rather bizarre application of the remedy of reading-in.  The Constitutional Court developed this remedy and has only ever used it in cases where it was found  that there was a clear breach of the Constitution. Only then does it consider whether an appropriate remedy for a breach of the rights of an individual might not be to read words into the Act to remedy the defect in the Act.

But in this judgment words were read into the Act without such a finding of a clear breach of the rights of an accused. It therefore seems to me that judge Nicholson completely overreached in making this move. If his precedent is followed, a judge could read words into any act that seemed contradictory or strange – even where no breach of the Constitution was found. This, to my mind, would pose some serious threats to the principle of separation of powers as it would in effect give the judiciary legislative powers to change legislation which was badly written or did not suit the sensibilities of an individual judge.

If the NPA appeals this judgment, they would have quite a few arguments they could therefore plausibly make before the Constitutional Court and may well have a strong prospect of success. But I guess we might have moved beyond mere legal technical arguments and that for political reasons the NPA might well not appeal the judgment or might decide not to re-institute charges against Zuma.

But I was wrong about the way in  which Nicholson would decide on Friday, so in the present political climate it might be better for me to refrain from any predictions on this score.

Zuma 1 – Mbeki 0

Sep 12th, 2008
by Pierre De Vos.
67 comments

After listening to most of the judgment by Justice Chris Nicholson this morning, my first response is that this  judgment is a stinging slap in the face of President Thabo Mbeki, his Minister of Justice, the entire cabinet and – perhaps with the exception of Vusi Pikoli – the National Directors of Pubic Prosecution.

A court has now for the first time made a finding confirming what many people have suspected, namely that Mbeki and his cabinet have interfered in the decision to prosecute Zuma to gain a political advantage in a political battle for the position of ANC President and that the constitutionally guaranteed independence of the NPA has been fatally breached in the process.

Justice Nicholson has confirmed that the NPA should act without fear favour or prejudice when deciding on whether to prosecute and individual and that it has failed to do so in the case of Zuma. He seemed to suggest that the NPA Act, which allows for the National Director to be fired by the President, may well be unconstitutional and that the President has abused his power and breached the Constitution by acquiescing in the undermining of the independence of the NPA.

President Mbeki has in effect been found to have breached the Constitution.

In an ordinary democracy, a President would find it difficult to survive such a rebuke from a court. President Mbeki’s position has really now become untenable and if he had any honour he would resign. The judgment would also rekindle calls by some in the ANC and in the Alliance for President Mbeki to be fired and it will be interesting to see how this plays out politically.

Mr Zuma is of course not in the clear, as the judge made it clear that his judgment in no way comments on the advisability of a decision of the NPA to re-charge Zuma or of the chances of success for an application for a permanent stay of prosecution.

Even if Zuma is not re-charged he will obviously still have an ethical (if not a legal) cloud hanging over his head and at the very least he will have to try and show to the nation why he would not have been found guilty had he been charged. Otherwise most of us will continue to wonder whether he might not have been corrupt after all and might not have given an opening to President Mbeki to abuse the system to get rid of him.

But the decision today strengthens both his political and legal hand. Politically, his claim of a political conspiracy has in effect been vindicated by a court. He must now be odds on favourite to become President of South Africa next year. Legally the judgment seem to strengthen the argument that he would not be able to get a fair trial because of the political interference in the case (although this would still be a difficult argument to sell to a court.

After re-reading the case I will comment further on the stunning events of the day but if I was a Jacob Zuma supporter I would be off to buy a crate or two of beer for a long night of celebration.

The dangerous constitutionalisation of our politics

Sep 9th, 2008
by Pierre De Vos.
38 comments

The debate that is now raging about the publication of a Zapiro cartoon – which depicts Mr Jacob Zuma on the verge of raping a woman representing the justice system while his allies hold her down – is potentially a healthy manifestation of democracy in action. The more we talk and debate and argue about controversial matters and the more we get to focus on important issues regarding the independence of the judiciary and the role of politicians in endangering our democracy, the better.

Unfortunately, much of the debate has not focused on the issue which Zapiro meant to highlight – namely how Mr Zuma and his allies are prepared to abuse the justice system for short term political gain. Instead, most people have commented on the wisdom of using the rape metaphor to make the point.

Some have  lambasted Zapiro for his “disgusting cartoon” that “borders on defamation” and have argued that it infringes on the dignity or privacy of Zuma and Gwede Mantashe. Others have cheered him on while attacking those who have criticised Zapiro as enemies of freedom of expression.

I was again forcefully struck by one aspect of this debate that I find troubling. Both on this Blog and elsewhere people seem to confuse and conflate the constitutional issues around freedom of expression and the right to privacy and dignity on the one hand, with a broader political/ethical question of whether a cartoonist should use a rape metaphor in his work on the other.

For me this is part of a dangerous constitutionalisation of politics, which allow people to skirt the very real, and difficult political and ethical issues of our time in favour of constitutional sloganeering. Unfortunately this tendency is not limited to one group alone. We all seem to hide behind constitutional slogans when it is too difficult, embarrassing or complex to engage meaningfully with an issue.

Thus, if one criticises Zapiro one is suddenly an enemy of free speech – even if one has never suggested that he should be censored or that the Sunday Times should apologise for publishing the cartoon. If one points out that Jacob Zuma is a morally flawed character, one is suddenly blamed for infringing on his right to be presumed innocent until proven guilty and on his dignity and his privacy. Because rights are often seen as trumps – and thus as a way to stop the political debate by appealing to a higher kind of principle – this hiding behind rights is dangerous for open and robust debate.

I am not saying that rights are not important or that a concern for human rights should not form part of the political discourse. On the contrary, a human rights sensibility should inform every discussion of politics. But South Africans seem to have a tendency to shy away from moral ambivalence and from acknowledging and confronting the complexities of living in South Africa by shouting out human rights slogans to stop any argument.

It is much easier to shout down an opponent with constitutional soundbites than to actually engage with the issues – which are often more complex and less obvious than we want to admit. For example, because it is too complex, difficult or uncomfortable to talk about racism, sexism and homophobia, we far too easily fall back on tired old assertions of hate speech.

And because it is too embarrassing or politically uncomfortable to have to deal with the fact that Mr Zuma took more than a million Rand from a convicted fraudster and then did some favours for him,  and that he lied to Parliament about this, some of us prefer to shout from the rooftops about unfair trials and the dignity and privacy of our beloved leader.

For the same reason, some comments on this Blog have suggested that I am a depraved ANC lackey who is the enemy of press freedom because I asked some questions about the wisdom of the rape cartoon, instead of engaging in a meaningful and thoughtful way with the questions I posed.

This kind of discourse seems like an ethically lazy and dangerous one, because it allows individuals to skirt the real issues in favour of manufactured issues around the Bill of Rights. It is dangerous because it cheapens real concern for human rights and uses human rights language as a way to hide from taking responsibility for our actions and beliefs.

A conflict of interest over the Scorpions?

Aug 20th, 2008
by Pierre De Vos.
11 comments

Should the wolf be allowed to guard the chicken coop? Should one steal candy from a defenseless child? Just asking, given the fact that Parliament is presently considering the passing of legislation that would scrap the Scorpions and incorporate (some of) its members into the South African Police Services.

The problem is, more than 100 MP’s have been investigated by the Scorpions for their role in the Travelgate scandal, more than 60 had property confiscated by the unit while at least thirty of them had been successfully prosecuted by the Scorpions for scamming Parliament.

After concerns were raised about the possible conflict of interest inherent in this situation, Speaker of the National Assembly, Baleka Mbete, has appointed a special multiparty sub-committee to investigate whether MPs who have come under the scrutiny of the Scorpions should be allowed to vote on the unit’s future.

This was despite Parliament’s legal advisers arguing yesterday that while a conflict of interest could possibly arise, there were enough checks and balances to prevent such MPs from unduly influencing proceedings when the Bills were debated. According to a report in the Cape Times Parliament’s legal adviser, Mthuthuzeli Vanara, have argued as follows:

We’re of the view that there is no legal basis, at this stage, for Parliament to order the recusal of the investigated member(s) from participating in both the House and committee proceedings. In our view such an order of recusal would be unlawful and have an adverse effect on the parties, which the relevant member(s) represent, as well as the electorate they are representing.

ANC MPs have opposed any move to have those MPs investigated by the Scorpions recuse themselves, arguing that the party would no longer have a majority in the National Assembly if all members originally investigated by the Scorpions for alleged involvement in the Travelgate scandal recused themselves.

The Constitution does not explicitly deal with conflicts of interest by members of the legislature when dealing with legislation. But I think two arguments could be made for a recusal of the Travelgate MPs.

First, the Supreme Court of Appeal has confirmed in the De Lille case that Parliament is also subject to the Constitution and actions by the legislature can therefore be reviewed by a Court to determine if these actions conformed to the requirements of the Constitution. In the Hugo case the Constitutional Court ruled that when one of the branches of government – in this case the President as head of the executive – exercised a constitutional power, it at least had to act in a rational manner. This mean that any arbitrary or capricious actions or actions based on bad faith could be reviewed by the court and set aside.

I think a strong argument could be made that where MPs who have been investigated by the Scorpions take part in the passing of legislation that would destroy that unit, they would be acting in bad faith and that the legislation thus passed could be reviewed by the Court and set aside. Whether that means that the ANC would lose its majority and would be unable to push the legislation through Parliament seems irrelevant to me.

Second, Parliament also has a duty to act in a way that seems credible and it must not act in a way that would create a reasonable apprehension in the minds of informed bystanders that it was acting mala fide. Here, an argument could be made that a reasonable person would fear that the MPs who have been investigated would be biased when considering the legislation and would vote for abolition out of revenge and thus for an ulterior motive. In fact, this seems pretty obvious to most: why else disband a unit that has been rather good at catching the criminals and putting them behind bars?

I am not sure why the legal adviser for Parliament is arguing that an order for recusal would be unlawful. Clearly a court could make such an order and clearly a court could set aside legislation passed in such a way if it found that the requirements of the constitution have not been met.

The argument that such an order would have adverse effects on the parties affected because in effect it would make it impossible for the ANC to gain the requisite majority to pass the legislation also does not seem to hold water. This is a circular argument that takes the interest of the ANC – and not the requirements of the Constitution – as its starting point. If the party want to pass the legislation it can always replace those Travelgate MPs affected by investigations by the Scorpions with new MPs. So far it has chosen not to do so.

This is not a done deal, but it seems to me the strongest legal argument yet advanced to stop the scrapping of the Scorpions and it is worth pursuing. The fact that a multi-party committee was formed to look into this, suggests that the Speaker has had some good legal advice and is also concerned about the legal problems that might arise if those investigated by the Scorpions take part in a decision to disband it.

Maybe Mr Glenister’s lawyers should try and include this line of attack in his arguments when he argues the case before the Constitutional Court today. How ironic it would be if the Parliament is unable to pass these pieces of legislation because of the investigation of its own members by the very unit it is trying to dissolve.

Some public spirited individual or the opposition parties in Parliament may want to pursue this line of reasoning in an application to the Courts. What is there to lose?

The ANC and scrapping of the Scorpions

Aug 13th, 2008
by Pierre De Vos.
84 comments

Steven Friedman has written a characteristically thought provoking piece in the Business Day today about the scrapping of the Scorpions, arguing that the ANC is not as democratic as it should be.

ANC leaders are right that they can comfortably win re-election despite scrapping the Scorpions. But they are wrong to say that this means that they are taking democracy seriously. Democracy is a system in which most citizens are meant to get their way, not most activists. Politicians who cynically ignore their voters because they know that they can be taken for granted cannot claim a serious commitment to democracy.

Party leaders have a ready reply. Nowhere in the world, they insist, are politicians obliged to go back to their electorate to check every decision. If you vote for a party but don’t join it, you must expect others to decide for you.

But citizens do not lose their rights because they do not join a party. Of course ANC leaders are not forced to ask their voters what they think. But leaders who insist that the only decision-makers in the ANC who matter are the 6% of supporters who join the movement cannot credibly claim that they are reviving the voice of the grassroots citizen.

Parliament’s task is to do what most citizens want — not what most members of a party want. Unless and until the new ANC leadership show an interest in what most of their voters want, their claim to democratic commitment within the ANC is as tenuous as that of the leadership they have replaced.

But I am a bit ambivalent about this view. Two years ago when Parliament had to decide on the adoption of the same-sex marriage law, most ANC voters were also against this move, yet in the end the ANC dominated Parliament adopted the Civil Union Act. Sometimes a majority party must do things not supported by its voters for the greater good and to implement the values of the Constitution.

Perhaps the Scorpions case is different because it might well be argued that the scrapping of the Scorpions is not based on principle or on a desire of the ANC to expand and protect the constitutional guarantees of citizens, but instead to protect their own members from prosecution for corruption.

Nevertheless, a majority party who believes in human rights may well sometimes act in a way not in line with the wishes of the majority of its citizens. The trick is to know when to do so and when to give way to the wishes of the majority. In the case of the Scorpions the ANC clearly got it wrong.

Public hearings on Scorpions

Jul 3rd, 2008
by Pierre De Vos.
52 comments

I see public hearings will be held  at Parliament on the 5, 6, & 7 August 2008 about the draft legislation that will be abolish the Scorpions. There will also be public hearings in the provinces from Monday 11 August to Friday, 15 August 2008.

It is clear that these hearings will aim to give effect to the recent Constitutional Court judgment in the Merafong case in which the Constitutional Court confirmed again that meaningful public participation was required when Parliament passed important legislation. Parliament will therefore have to manage this process very carefully to vaccinate the legislation against a constitutional challenge.

As the majority pointed out in the Merafong case – following previous precedent – meaningful participation did not require Parliament to follow the suggestions of the public, but merely that it had to be open to be persuaded by such submissions. What was required was for the public hearings not to be “a cynical charade”, but “held in good faith”. There must be “a possibility of change” in the position of the legislature.

There is no authority for the proposition that the views expressed by the public are binding on the legislature if they are in direct conflict with the policies of Government. Government certainly can be expected to be responsive to the needs and wishes of minorities or interest groups, but our constitutional system of government would not be able to function if the legislature were bound by these views. The public participation in the legislative process, which the Constitution envisages, is supposed to supplement and enhance the democratic nature of general elections and majority rule, not to conflict with or even overrule or veto them.

When public hearings are held on the abolition of the Scorpions Parliament will therefore have to listen to a wide range of opinions and if the ANC does its work, it will ensure that some of these opinions will support the abolition of the Scorpions and when they eventually pass the legislation it will be very difficult to challenge on the grounds that there was no meaningful public participation in the adoption of this legislation.

So, farewell Scorpions. Just another institution destroyed to serve the short-term political interest of what Xolela Mangcu calls the new fascists. The only way to deal with this kind of short-sighted and destructive arrogance on the part of the ruling party is to vote them out of office. But this will not happen next year because there is no credible party to vote for.

Zuma trial must go ahead

Jun 23rd, 2008
by Pierre De Vos.
17 comments

I always liked comrade Blade Nzimande, leader of the South African Communist Party (SACP). Maybe it is because he sounds so camp when he speaks; or perhaps it is because the SACP has sometimes been a voice of reason on important issues such as Zimbabwe and the need for internal party democracy in the ANC.

I was therefore rather shocked to read in Business Day this morning that Nzimande, speaking shortly after the KwaZulu-Natal ANC conference where a call was made for the scrapping of Mr Jacob Zuma’s criminal trial, seemed to endorse this call, telling a rally of supporters:

This trial of (ANC) president Jacob Zuma is not a criminal trial but a political trial. It may be the first political trial since 1994.

Now, there has been a lot of dark muttering about the political motives behind the prosecution of Mr Zuma. So far no one has been able to provide any evidence of the conspiracy against Zuma and Mr Zuma himself has not come clean to explain who is leading this conspiracy and how they actually fabricated all this evidence of wrongdoing which have already led to the conviction and imprisonment of Schabir Shaik.

Mr Zuma has also never explained why he took all this money from a convicted fraudster, why he had met with arms company representatives who then paid him money via Shaik, why he had done favours for the fraudster, why he lied to Parliament about meeting the arms company representatives and why he is so anxious to prevent the diary of the arms company representative that shows he met with this representative from being tendered as evidence against him in a criminal trial.

As the defendant in a criminal trial, he has a right to remain silent and need never explain these things to anyone. But as a politician he really should not have this right. In a mature democracy his failure to answer these questions would long have disqualified him from holding office in any political party. I am surprised that journalists have not been more vigorous in asking Mr Zuma about these things. Surely if he wants to be President of the country he has a duty to explain to the public and to present an alternative version of the actual proven facts which – in the absence of an explanation – make him look like, how shall I put it, a crook.

It is not inconceivable that the Scorpions might have felt that it had political cover from President Thabo Mbeki to go after Zuma and that if President Mbeki had been as vigorous in undermining the Rule of Law to protect Zuma as he was in undermining it to protect his friend Jackie Selebi, then this case would never have seen the light of day.

But the problem is not that Mr Zuma is being charged. The highest court in the land had already confirmed that Zuma took more than a million bucks from a convicted fraudster as well as R500 000 from an arms company that was solicited as a bribe by Shaik and that he had done several favours for that fraudster, and had lied to Parliament about meeting the representatives of the arms company that gave the bribe. It also seems rather strange that an innocent man would do everything in his power to prevent documents about his financial affairs from being used in his trial.

It is for a court of law to decide whether these actions amount to criminal offenses, but it clearly makes Zuma a deeply flawed and damaged candidate for President. Especially in the absence of any explanation from him.

If the SACP wanted to act in a principled way to the prosecution of Mr Zuma it would not talk about the Zuma trial being a political trial. Instead it would affirm respect for the Rule of Law, the independence of the National Prosecuting Authority and our courts, and would call on the Scorpions to also vigorously investigate and, where appropriate, prosecute other politicians who had taken bribes during the arms deal.

If there is a problem with Mr Zuma’s trial, it is that he is being singled out for prosecution while others (including the ANC itself, according to Andrew Feinstein) might be getting away. The only decent and principled thing would be to ensure that all those who had taken money from arms companies (Chippie, where are you?) are also prosecuted and to demand that the Scorpions does its job properly.

But Nzimande and other supporters of Mr Zuma is really trying to defend the indefensible. Whether Mr Zuma is ever convicted of a crime or not, we already all know that he is ethically tainted and that he is unfit for high office.

This kind of attack undermines respect for the the criminal justice system and our courts and is dangerous. It prepares the groundwork for a rejection of a guilty verdict against Mr Zuma as “political” (no matter what the facts might say) and really undermines one of the pillars of our democracy – all for short term political gain.

As Hillary Clinton might have said: “Shame on you Blade Nzimande.”

Scorpions application: snowballs chance in hell

May 29th, 2008
by Pierre De Vos.
10 comments

I agree with commentators that there is almost no chance that the Constitutional Court will make any order at this stage to stop the adoption of the legislation to disband the Scorpions and incorporate some of its members into a special unit of the South African Police Service. The application is clearly premature and should have waited until the legislation was actually adopted.

But even then, chances would be slim for such an application to succeed because one would have to show that there is no legitimate purpose for the legislation (which would be almost impossible to d0) or one would have to show that the cabinet and Parliament had unlawfully abdicated its role as legislature and executive to the majority party leadership who had instructed them to abolish the Scorpions and had thus circumvented the Constitution.

If the Court made such a finding it would put severe strain on the system and might dent the credibility of the Court. AS the Constitutional Court has shown in the floor crossing case, for example, it would be extremely reluctant to get involved in such political controversies in the absence of a clear argument that one of the rights in the BIll of Rights are being infringed.

But some aspects of the legislation as it stanmds might be vulnerable. It states that “selected” members of the DSO would be placed in a new unit in the SAPS but it is unclear how these members will be selected. The members will also have to undergo a security clearance but as the Bill stands even that might not be sufficient as some members of the DSO may not be selected. This might infringe on the labour rights of the DSO members as set out in the Constitution.

Who decides who is “selected” to form part of the new unity and based on what criteria? As far as I can tell the Bill is silent on this. This is an ominous aspect of the Bill as it provides for the de-selection of some members of the existing Scorpions who might be working on the sensitive cases dealing with Mr Jacob Zuma na d Jackie Selebi.

If the Minister or the head of the SAPS can select or de-select who of the Scorpions should form part of the new unit this might open the possibility of rigging the process in such a way as to completely destroy the present investigations into high profile ANC types. This would be unconscionable.

 

Scorpions bombshell coming?

May 28th, 2008
by Pierre De Vos.
8 comments

The Citizen reports this morning that Parliament has done an about-turn and launched a “desperate” last-minute bid against a Johannesburg businessman’s urgent High Court interdict application against disbanding the Scorpions.

Speaker of Parliament Baleka Mbete and National Council of Provinces chairman Johannes Mahlangu filed affidavits with the Pretoria High Court on Monday, asking to present their case if Glenister intends to interdict Parliament.

From what I hear from lawyers and going on what was said in the media, it might well be that Mbete has gotten wind that the Court will rule against the government and the ANC leadership in Parliament is now trying to stop this from happening.

If the court rules in favour of the Johanneburg businesman it would be truly a legal bombshell. The judge will become the hero of the chattering classes and the villian of the new ANC eladership. Thing is, it is the same judge who acquitted Jacob Zuma on rape charges so vilifying him might be awkward.

On the State, the Party and the Scorpions

May 22nd, 2008
by Pierre De Vos.
24 comments

It will be a brave (or perhaps foolhardy) judge who will grant the application of Johannesburg businessman Hugh Glenister to stop President Thabo Mbeki and the safety and security and justice ministers from initiating legislation to dissolve the Scorpions. The Constitutional Court, it seems to me, has frowned upon such applications which are seen as premature because they are brought even before the legislation is debated and adopted by Parliament.

But important arguments about the nature of our democracy and the relationship between the ruling party and the state were raised this week before Pretoria High Court judge Willem van der Merwe (who acquitted Jacob Zuma on rape charges) and it will be interesting to see how the Court deals with them. Advocate Michael Osborne, who acted on behalf of several political parties, argued that the decision blurred the division between the state and the party and as such represented a threat to our democracy.

To bolster his case he quoted from a statement made by Treasurer-General of the ANC, Mr Matthews Phosa, who said that:

The president of the country takes guidelines, mandates and instructions from the ANC…. There is only one centre of power and that is the highest decision-making structure of the ANC. The NEC, including the President of the ANC, in effect becomes the representative of the majority of voters between elections. Its task therefore is to instruct the executive and legislative organ of government on issues of policy. The elected ANC structures hold the ultimate power in this situation and all structures and leaders of the governing party will account to them. The President and his or her Cabinet accounts to the NEC of the ANC, as any other structure of Government does.

He argued that this view of the relationship between the ANC and the executive – reflected in the “instruction” of the ANC at Polokwane to the executive to disband the Scorpions within six months – wholly undermines Parliament, who has a Constitutional duty to hold the executive to account. I agree with this view, but unfortunately it is unclear whether such an argument will be successful.

The problem is that our Constitution does not spell out the appropriate relationship between the Party and the State. It is true that the Constitutional Court has made clear that our Constitution establishes a mix of a representative and and a participatory form of democracy and that the public had a right to take part in important decisions of Parliament. If the legislation to disband the Scorpions were therefore to be rammed through Parliament without giving the public the opportunity to take part in this process, it would contravene the Constitution.

At the same time it is clear that the representative aspect of our democracy allows the majority party in Parliament to pass legislation as it sees fit – as long as it can be shown to have allowed for public participation, has acted in a rational manner and as long as the legislation does not infringe on our rights.

The problem is that our electoral system bestows enormous power on the leadership of the majority party to do as it pleases. Given the fact that we vote for political parties and not for individuals and given, moreover, that party bosses can decide which of their members serve in Parliament and who is elected President, those party bosses can at least indirectly dictate policy to its members in Parliament and in effect to the executive.

The strict party discipline we inherited from the Westminster systems has now further been bolstered and entrenched by an electoral system that emasculates individual members of Parliament and bolsters the power of the Party leadership. When the Party’s leaders and the leaders of the country are the same people the system can more or less work and can at least provide the facade of real participatory democracy. But when there are two centres of power – as is now the case – it exposes a great weakness in our Constitution.

An argument could be made that democracy is not really undermined because if we do not like what party bosses are doing, we can vote the party out of power at the next election. In South Africa at present that option is not really available. This means the Party leadership – elected by 4000 people at Polokwane – has far more power than the members of the executive or of Parliament.

I am not sure a court can do anything about this because that is the system our Constitution is based on. If we did not have a one party dominant system, it would not have been such a big problem, but we all know that opposition parties will for the time being not attract large amount of ANC voters and that is what creates the problem as there is no real possibility for a change of government. This may allow the party bosses to take very stupid and even corrupt decisions and then to enforce these decisions via the legislature and the executive.

What would be required is a change in the electoral system and perhaps legislation to ensure that political parties adhere to basic principles of democracy in their internal operations. Whether a court can – or even should – interfere in this process is highly debatable exactly because our constitution gives such an important role for the Party. For a court to intervene might well overstep the line between the judiciary and the other branches of government.

But maybe if this case goes all the way to the Constitutional Court, those clever judges will find a way to clarify the role of the Party vis-a-vis the state that would mitigate some of the problems we now experience in our democracy. So maybe judge Van der Merwe should be brave and even a bit foolhardy so that the problem could be addressed by our highest court.

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