Concourt arms deal case was always a long shot

This weekend it was reported that President Jacob Zuma told the ANC’s NEC that he had decided to appoint a commission of inquiry into the arms deal to prevent the Constitutional Court from taking charge of the matter and prescribing the terms of reference for him. The Mail & Guardian claimed that the President had told the ANC NEC that the Constitutional Court was set to rule in November on activist Terry Crawford-Browne’s application to force President Zuma to reopen the arms deal investigation and that he therefore had to act in anticipation of a ruling against him.

The Mail & Guardian reported that according to three NEC members, Zuma was aware that the majority of the court’s judges would rule in favour of Crawford-Browne. According to the report, Zuma’s decision has upset some senior members of the ANC, who privately accuse him of taking major decisions without engaging the NEC. Others in the party see the decision as a strategy to embarrass more ANC leaders ahead of the party’s elective conference next year.

This report sounds strange and deeply troubling, to say the least. There are at least three reasons why the report, if true, is cause for serious concern. (Whether the NEC members falsely leaked information to the newspaper is just as likely true as that the President actually said what he was reported to have said.)

First, the Constitutional Court is NOT set to rule against President Zuma in this case by November this year, as the full oral arguments are only set to be heard on 17 November this year. A ruling would therefore only be handed down sometime in 2012 (quite a few months before the ANC’s next elective conference takes place at Mangaung at the end of 2012). Either the journalist got this wrong or President Zuma said something to the NEC that was factually clearly wrong.

Second, the case has not been argued fully before the Constitutional Court yet and has only been set down for argument for 17 November. The judges could therefore not possibly have made up their minds on how to rule, as they are required to keep an open mind until such time as they have heard the oral arguments presented to them. If they had indeed made up their minds and if they had intimated to anyone how they would rule in a case not yet argued before them, they would be acting in a highly improper manner. If there was proof for the statement by the President, it could easily form the basis of a successful recusal application of all those judges who had already made up their minds.

Besides, even if they had made up their minds before oral argument, how on earth would President Zuma have known how the judges viewed the case without having allowed the intelligence services to spy on the judges of the top court or without having somebody – maybe one of the judges on the Constitutional Court – acting as a spy for the President?

This could mean that the statement by President Zuma to the NEC was wrongly reported by the media because the newspaper faked the report or because NEC members leaked false information to it. Or – alternatively – it could mean that the President was either lying to the NEC or that he was admitting to highly improper behaviour on the part of one or more Constitutional Court judges (for making up their minds before a hearing or for leaking confidential information to the President) and/or he was revealing unlawful conduct on the part of the intelligence service.

Either way, this would rightly constitute an enormous scandal. Either the newspaper’s journalist who wrote this story is a deeply unethical and dishonest person in which case that journalist should be fired forthwith (something that seems very unlikely, in my opinion, given the lack of a strong response from the ANC to this report), or the journalist was fed lies by the three NEC members. Alternatively, something really, really scary is happening within our Presidency and lies, deception or at best shocking incompetence and stupidity is the order of the day in that office.

Thirdly, the statement by the President is almost certainly not factually correct. I for one would be quite surprised if a majority of judges of the Constitutional Court were set to rule against the President in terms of the application to force him to institute an arms deal inquiry. In my opinion, the constitutional law arguments (as opposed to ethical arguments or political arguments) in favour of an order by the court to force the President to appoint a commission of inquiry are at best weak and at worst a little absurd.

In papers filed in support of this application, the applicants argue that the refusal by the President to appoint an arms deal inquiry is unconstitutional because the failure is irrational in that it does not serve any legitimate government purpose and is not rationally connected or related to any such purpose. In other words, the applicant relies on a rule of law argument to contend that the Constitution places a positive duty on the President to take a very specific action (namely, to appoint a commission of inquiry into the arms deal).

Usually the rationality test set out above is applied in cases where the President or some other organ of state has done something and it is found that this action was irrational. Here the applicant wants a court to find that a failure to take a specific action was irrational – which is a very difficult argument to make.  In effect, the applicant is arguing that the Constitutional Court should order the President to make a policy decision to give effect to his duties that arise in terms of section 83 and 84 of the Constitution.

Relying upon the founding provisions of section 1 of the Constitution, which states, inter alia, that the Republic of South Africa is founded on the values of the supremacy of the constitution and the rule of law and a multi-party system of democratic government, to ensure accountability, responsiveness and openness and relying further on section 2 which affirms the supremacy of the Constitution, the applicant is contending that if this is read with section 84(2)(f) there is a positive obligation on the President to appoint commissions of inquiry when serious questions arise about large scale corruption and bribery in government. To quote from the papers:

His contention is that under the rule of law foundational to South Africa’s multi-party system of government, the President is obliged to ensure accountability, responsiveness and openness. Conduct inconsistent with these foundational values is invalid. Obligations imposed by the [Constitution], which include the responsibility of the President to appoint a commission of inquiry in the circumstances upon which the applicant relies, must be fulfilled. The refusal to appoint a commission of inquiry is accordingly constitutionally invalid.

It is clear that under section 84 of the Constitution the President has the power to appoint a commission of inquiry. It is also true – as the applicant contends – that this must be read in conjunction with section 83 of the Constitution, which places a duty on the President to uphold, defend and respect the Constitution as our supreme law and requires the President, further, to promote the unity of the nation and that which will advance the Republic.

But it is at best a stretch to then argue that the President cannot accountably and responsively ignore or refuse well founded requests for the appointment of a commission of inquiry in the present circumstances. It is an even greater stretch to imagine that a court will order the President to institute such an inquiry and that it will dictate the terms of reference of the commission of inquiry.

Even though the lack of a credible criminal investigation may lead one to question whether the executive has been serious in the past about uncovering corruption in the arms deal, and even if one can assume that the President has a positive duty in terms of the Constitution to take steps to ensure responsive, accountable and open government, the separation of powers doctrine has so far been relied upon by our courts to limit its interference with policy decisions of this nature which are usually taken by the Executive alone.

A court might well find that there is a positive duty on the President to do something about the allegations of arms deal corruption, but for a court to order the President to appoint a commission of inquiry and then to delineate the terms of reference of that Commission (reportedly the fear that has “forced” the President to make an announcement about the arms deal inquiry) would constitute an extraordinary invasion of the terrain usually occupied not by the courts but by one of the democratically elected branches of government.

It might well be – as the applicants suggests in its papers – that a reasonable apprehension has arisen that the arms deals may be tainted by misfeasance and/or malfeasance, in the forms of irregularities, fraud and corruption. It might also be that (as the applicants argue) this apprehension has arisen because of the criminal convictions of one Tony Yengeni, a former African National Congress (ANC) Chief Whip in parliament, and Schabir Shaik, a businessman and financial adviser to Jacob Zuma, the president of both the country and the ANC.

Interestingly, the applicant also relies upon the call for a commission of inquiry made, albeit obiter by Nicholson J in the case of Zuma and Another. v The National Directory of Public Prosecutions and Others. Recall that this was the case in which Nicholson basically found – based on newspaper articles – that there was some kind of conspiracy or at least a good possibility of a conspiracy – against Jacob Zuma, so maybe this played a role in the President’s thinking. Who knows? 

What I do know is that the case asking the Constitutional Court to order the President to institute an arms deal inquiry was always going to be a long shot. Personally, I would be quite surprised if any judges of the Constitutional Court (let alone a majority of its judges) decided that it was appropriate to order the President to institute such an inquiry. Unlike in the Glennister case where the majority of the Constitutional Court could rely on the fact that a failure to create an independent anti-corruption fighting body infringed on ordinary citizen’s social and economic rights and was also required by our international law obligations, in this case the request by the applicants is so specific that it would be seen as an interference with the powers of the executive. A separation of powers concern would therefore inevitably arise.

Maybe President Zuma “merely” has very bad lawyers advising him about his prospects in the Constitutional Court, or maybe he was duped into appointing this commission of inquiry by people who wrongly told him that the Constitutional Court was likely to order him to institute such an inquiry in any case. Either that, or the President is more wily than we give him credit for and he is playing an incredibly clever but highly risky game in which he is aiming to destroy all his enemies and detractors within the ANC through a carefully constituted arms deal inquiry.

One thing I do know, and that is that the Constitutional Court was highly unlikely to have ruled in favour of Crawford Brown in this case – especially in the terms requested by Crawford Brown in his papers. If the President thought that the Constitutional Court would rule against him, this may say more about the paranoia and incompetence of the President and those who advise him, than about the likely outcome of a case not even yet argued before the Constitutional Court.

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