Why President Zuma should not appoint commission of inquiry into #StateCapture

The #Guptaleaks contain abundant evidence of wrongdoing. But because the Hawks is not headed by fearless and independent-minded investigators, it is highly unlikely that anyone will be arrested (let alone charged) for corruption, money laundering, fraud and racketeering following the #Guptaleaks. For this reason, many people have placed their hopes on the appointment of a commission of inquiry to uncover the full truth about state capture of which the Gupta emails have given us vivid (but only incomplete) glimpses in recent weeks. But for several legal and practical reasons, this hope might be misplaced.

In an episode of the classic British sitcom, “Yes Minister”, the Minister in question, Jim Hacker, discovers that he misled Parliament because he was given the wrong figures by members of his department. He meets with the senior civil servant, Sir Humphrey Appleby, to decide what to do, and the following discussion ensues.

Jim Hacker (JH): Couldn’t we get the independent inquiry to exonerate the department?

Sir Humphrey Appleby (SH): Do we rig it?

JH: No, no, no! …. Well… yes.

SH: Minister! No, it all depends on who the chairman is. He absolutely has to be ‘sound’.

JH: How do you mean, ‘sound’?

SH: Well, a ‘sound’ man will know what is required. He will perceive the implications. He will have a sympathetic and sensitive insight into the overall problems. In short, he will be ‘sound’.

JH: You mean…. ‘bent’?

SH: No, of course not! No, he will be a man of broad understanding.

Sir Humphrey then suggests the appointment of a senior civil servant to lead the inquiry. Jim Hacker is worried the said civil servant might be “too independent”, but Sir Humphrey assures him that the civil servant will be “sound”. This is so, Sir Humphrey smugly tells Minister Hacker, because the said civil servant was hoping to be rewarded with a peerage and would therefore do what was required to exonerate the department.

The snippet from “Yes Minister” reminds us that politics is about who decides, about who decides who decides, and about who decides the subject matter of what is to be decided. It therefore reminds us that the person who appoints a commission of inquiry, and who decides on its terms of reference, could have a significant influence on the outcome of the inquiry.

In the case of the commission of inquiry into state capture by the Guptas, it will be President Zuma who would normally be constitutionally authorised to appoint the commission of inquiry (who will decide who decides) and who will set the terms of reference (who will decide what is the subject matter is that must be decided on).

We know that President Zuma is a self-confessed friend of the Guptas and his son is a “business partner” of the Guptas. We also know that the Guptas knew about the appointment of certain cabinet ministers by President Zuma long before the official announcement was made, which means the President prematurely and improperly (either directly or indirectly) conveyed his decisions on cabinet appointments to Guptas. The Guptas used this privileged information to their personal advantage.

President Zuma is thus implicated in many aspects of state capture and would therefore be required to appoint a commission of inquiry into matters which might at best embarrass the President, and at worst might reveal criminal behaviour on his part.

President Zuma therefore has a direct interest in the outcome of any commission of inquiry and is therefore fatally conflicted. It is difficult to see how a commission of inquiry appointed by him could have any credibility. Moreover, an argument could be made that any appointment would be unlawful as, so one would argue, it would be irrational for the President to appoint a commission to investigate, among others, wrongdoing by the President.

It is for this reason that the former Public Protector ordered the President to appoint a commission of inquiry into state capture, but purported to fetter the President’s discretion by requiring the Chief Justice to nominate the person to be appointed by the President to chair the commission.

I have said previously that I am not at all convinced that this remedial action imposed by Thuli Madonsela in the State of Capture Report will withstand judicial review. As I wrote before, the Constitutional Court in President of the Republic of South Africa and Others v South African Rugby Football Union and Others (second SARFU case) held that the President cannot lawfully exercise his constitutional powers under dictation from another person.

Although this is a special case (given that the President faces a terrible conflict of interest), it is at best unclear whether the former Public Protector had the legal authority to order him to appoint a commission of inquiry. In this sense, there are similarities between this remedial action and the bizarre remedial action recently imposed by the current Public Protector in which she ordered Parliament to change the Constitution.

There are, of course, also important differences which renders the remedial action of the current Public Protector far more obviously unlawful: in the previous case, the order was directed at the President and was not attempting to usurp the democratic law-making powers of Parliament; there was no order to change the Constitution which is supreme; and the President was fatally conflicted, something that cannot be said of the National Assembly.

Despite these obvious differences, I will nevertheless assume that it is likely that the judicial review of the remedial action imposed in the State of Capture Report will be successful.

But what happens if the court reviews and sets aside the remedial action ordering the President to appoint a commission of inquiry into state capture? On paper, the President would then be able to appoint such a commission and could also determine its terms of reference as he sees fit. The problem is that any judge appointed in this manner would almost certainly have to recuse him or herself. There are two inter-related reasons for this.

In President of the Republic of South Africa and Others v South African Rugby Football Union and Others (first SARFU case) the Constitutional Court held that:

A judge who sits in a case in which she or he is disqualified from sitting because, seen objectively, there exists a reasonable apprehension that such judge might be biased, acts in a manner that is inconsistent with section 34 of the Constitution, and in breach of the requirements of section 165(2) and the prescribed oath of office.

In applying the test for recusal, courts have recognised a presumption that judicial officers are impartial in adjudicating disputes. The test is therefore whether an ordinary person who will not jump to conclusions and will not assume that a judge is biased, but will rather assume the opposite, nevertheless will have a reasonable apprehension (correct or not) that the judge will not fulfil his or her duties impartially.

One would normally assume that even a judge appointed by President Zuma – even if appointed because President Zuma believed him or her to be “sound” (perhaps because he or she has ambitions to be appointed to the Constitutional Court) – will be impartial. But as President Zuma is so self-evidently conflicted and as it is so clearly not in his best interest to appoint an impartial judge, a reasonable person may well develop a reasonable apprehension of bias on the part of said judge.

Reasonable people could differ on this point, which leads me to a second, far more pressing problem.

In South African Association of Personal Injury Lawyers v Heath and Others the Constitutional Court held that it would be permissible for judges to head commissions of inquiry “in appropriate circumstances”. But the court warned that a judge should not accept appointment to a commission of inquiry if this may threaten the separation of powers. The Court endorsed a list of considerations that should guide a judge when deciding whether to accept appointment to a commission of inquiry. Some of these considerations are whether the performance of the function:

• requires the judge to exercise a discretion and make decisions on the grounds of policy rather than law;
• creates the risk of judicial entanglement in matters of political controversy; or
• will occupy the judge to such an extent that he or she is no longer able to perform his or her normal judicial functions.

If President Zuma appoints a commission of inquiry into state capture, any judge appointed to head such a commission will immediately be entangled in an unsavoury political controversy and will have to reject the appointment. It matters not that the judge may have impeccable credentials and that a reasonable person, knowing that the judge is incorruptible, will have no apprehension that he or she would be biased.

The fact of the matter is that most people are neither reasonable, nor informed. Spending a minute or two on Twitter will confirm this self-evident fact beyond any doubt.

Given the widespread and deep suspicion among large sections of the population about the rectitude and honesty of President Zuma, and given the fact that South Africans will all be aware that it is not in his interest to appoint an impartial person to head such a commission, it would most probably not only be inappropriate but also unconstitutional for any judge to accept appointment by President Zuma to such a commission. Such a judge would run the risk of bringing the judiciary into disrepute by getting entangled in a highly political issue and would have to decline appointment.

This does not mean that it would be impossible for a judicial commission of inquiry to be established. Section 90(1) of the Constitution allows for a mechanism to avoid the self-evident conflict of interest problem. This section states that when the President “is absent from the Republic” or “otherwise unable to fulfil the duties of President” the Deputy President acts as President.

This means that President Zuma can allow Deputy President Cyril Ramaphosa to appoint a commission of inquiry (determining the terms of reference and selecting a judge to head it) while President Zuma is abroad and Ramaphosa is acting as President.

Or the presidency could argue that the President is conflicted and therefore “unable” to make any decision about the appointment of a commission of inquiry into state capture, which means the Deputy President can be designated to serve as President for the short time required to make the decision on the appointment of a commission.

While I cannot imagine a court ordering the President to appoint a commission of inquiry, the President has already indicated that he has agreed with the leadership of the party that a commission of inquiry into state capture must be appointed.

The only way to do so legally (and to avoid the suspicion among ordinary citizens who might not be as reasonable as we would hope, that the judge was only appointed because he was – in the words of Sir Humphrey Appleby – a “sound” judge) is therefore to find a way (as suggested) to allow the Deputy President to appoint the commission and to finalise its terms of reference.

But even then, it is far from clear that a commission will uncover the whole truth on state capture. Commissions seldom do. But perhaps that is a topic for another day.

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