An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
A joint letter signed by Nobel Peace laureates Desmond Tutu and FW de Klerk has been delivered to President Kgalema Motlanthe’s office on 2 December 2008, urgently requesting that he institutes an independent and public judicial commission of inquiry into the arms deal. The letter argues that:
the widest possible investigation into impropriety and corruption is appropriate. The commissioners should be required to indicate who, if anyone, should face prosecution and on what charges. There should also be an investigation into the possibility of cancelling arms deal contracts tainted by corrupt and fraudulent dealings, and recovery of payments already made. The urgency of the matter is self evident. The country is moving towards a general election, and the voters are entitled in the spirit of free and fair elections to be informed about what has become a major scandal in the country’s political discourse. Should you decline this petition, we respectively request that you furnish the reasons for your decision.
But what happens if President Motlanthe refuses to appoint such a commission? Could the Constitutional Court order him to appoint such a Commission? Would it ever issue such an order? I am afraid the answer to both questions is almost certainly no.
The argument being made is that section 84(2)(f) of the Constitution states that the President “is responsible for… appointing commissions of inquiry”. Moreover, section 83(b) states that the President “must uphold, defend and respect the Constitution as the supreme law of the Republic”. This means the President has a duty to take steps to uphold the founding values of our Constitution, especially section 1(d) which states “the Republic of South Africa is one, sovereign, democratic state founded on”, amongst others, “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.
Given the widespread credible allegations of corruption in the arms deal, so the argument goes, the President has a constitutional duty to apppoint a full commission of inquiry to ensure accountable, responsive and open government. If he fails to do so he would be failing in his duty to uphold, defend and respect the Constitution – and the Constitutional Court would have the power to order him to do so by appointing a commission of inquiry.
If I had any money to spare, I would take a sizable bet that this argument is not going to fly with the Constitutional Court. There are several reasons for my scepticism.
The power of the President to appoint commissions of inquiry stems from the prerogative powers, which in the United Kingdom rested with the monarch and always had a strong political discretion attached to them. Although these powers have now definitively been captured in our Constitution, they have retained their strong political dimension and as the Constitutional Court made clear in the Hugo case the exercise of these powers would very seldom be reviewable by a Court.
Where these powers are exercised (or not exercised) a court would only intervene if the decision by the President was irrational. One would have to show that the decision was arbitrary, capricious or in bad faith – something that would be very difficult to do, given the many different policy options open to the President to fulfill his constitutional duty to uphold and defend the founding values of openness and accountability in our democracy.
This is appropriate because the separation of powers doctrine requires our courts to respect the power of the executive to make the kind of political choices associated with a decision to appoint or not to appoint a commission of inquiry. Even if the Constitutional Court could be persuaded that the President had failed to defend the values of openness and accountability enshrined in section 1 of the Constitution because allegations of corruption in the arms deal have not been dealt with decisively, it would not order the President to appoint a commission of inquiry into the arms deal because the judges would feel this would interfere with the powers allocated by the Constitution to the President (and not to the court).
Of course, it would be rather difficult to convince the Constitutional Court that the President had not defended these constitutional values, given the fact that an investigation into the arms deal had already been conducted by the NPA, the Auditor General and the Public Protector. The report produced by these agencies was of course doctored by President Mbeki, but this in itself would probably not be enough to convince a court that the President has failed in his constitutional duties.
Judge Nicholson did suggest that the President should institute such a commission, but I am quite convinced that these kinds of mutterings (just like his findings about the political conspiracy) would never have been made by the Constitutional Court. The latter court is far too aware of its appropriate role in our system of constitutional democracy based at least partly on the principle of the separation of powers. As a matter of judicial politics it is a non-starter.
Having said that, it is interesting to note that apart from Trevor Manuel, none of the individuals or organisations implicated in arms deal corruption have sued those who had made these allegations. While Thabo Mbeki’s lawyers immediately sprang into action after the Nicholson judgment in effect found that he had interfered with the NPA, he has not sued the Sunday Times for alleging that a bribe of R30 million was solicited from a succesful arms bidder and that R2 million was given to Jacob Zuma and the rest channeled to the ANC. Come to think of it, neither has Zuma sued anyone for this scandalous allegation – despite the fact that he has taken action to sue a cartoonist and some newspaper editors for making fun of him.
I imagine in a defamation case, the ANC (and Zuma) would be requested to provide information about their finances and this information may well provide embarrassing details or even incriminate them. No wonder no one has sued either Andrew Feinstein or the Sunday Times for alleging the ANC received money from at least one of the succesful bidders in the arms deal.
That is also why our President will probably not appoint a commission of inquiry into the arms deal as the Commissions Act provides wide powers for a commission to summon witnesses and to compel them to provide books, documents or other material requested by the commission. If I was the ANC Deputy President, the last thing I would want to do was to appoint a commission of inquiry that could summons all the financial records of the ANC since 1997. (But if that commission could be persuaded only to get their hands on all Zuma’s financial records, that might be helpful if one wanted to remain President after the election!)
Imagine what a field day the press would have with all the dirty little secrets on ANC funding that will emerge – even if it turned out that no money was paid by arms bidders to the ANC. Nee wat, there is no chance that our President will appoint this commission. Nice try though.BACK TO TOP