Quote of the week

The unhappy fact that it is journalists, investigating organs of state and officialdom and the political class and their involvement in corrupt practices to loot the State’s resources, who, by so doing, attract the attention of powerful and influential persons who are capable of suborning the apparatus of the State to smell out their adversaries, cannot be ignored. The examples of abuse of the system have been addressed elsewhere in this judgment. Moreover, the respondents’ perspectives assume that the designated judge is not lied to and is diligent… In my view, in the absence of a rebuttal, this example illustrates a grave vulnerability in RJCA that such an apparent abuse could occur. The common cause examples of blatant lies being told to the designated judge further exacerbates the vulnerability of the system.

Sutherland J
Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others
3 December 2007

On a criminal conviction and the Presidency

A journalist phoned me this morning to ask “just a few questions about some constitutional technicalities”. Driving to work I (illegally) clutch my fancy cellphone while the journalist fired away. “When Members of Parliament are convicted of a crime,” he said, “they lose their seat in the Parliament, hey? So, will Jacob Zuma lose his position as President if he is convicted of fraud and corruption after being elected President?”

It sounds like the chattering classes are getting desperate and are now thinking of all the possible scenarios that could prevent Jacob Zuma from being President. But I am not sure that relying on the National Prosecuting Authority to “get rid” of Zuma was ever a clever political strategy.

It does seem that this was the strategy adopted by President Mbeki and look where that has left him: far behind and quite desperate. First Bulelani Ngcuka announced the prima facie case against Zuma without charging him along with Schabir Shaik, hoping that this would taint Zuma in a way that would put an end to his Presidential ambitions.

When that did not work, the NPA then prematurely charged Zuma, which led to the charges being thrown out of court, sending the NPA back to the drawing board. Through all this Zuma’s popularity seemed to have increased. If he is now again charged it may make him even more popular.

All through this debacle those of us in the chattering classes cheered on the Zuma prosecution for whatever reason, and now we find ourselves with a terrible middle class hangover.

In any event, I told the journalist that he had it slightly wrong. Section 47 of the Constitution states that members of the National Assembly cease to be eligible for membership of the National Assembly only if they had been convicted of a crime and had been sentenced to more than 12 months imprisonment without the option of a fine. That is why the Travelgate MP’s who made plea bargains that excluded a prison sentence are still in our legislature.

If Mr. Zuma is to become President, he will have to become a member of the National Assembly before he is convicted and sentenced for fraud and corruption (crimes which carry a 15 year mandatory prison sentence). Once elected by the majority of the members of the National Assembly, he will immediately stop being a member of the National Assembly and will cease being subject to section 47 of the Constitution.

Once elected as President, he would not automatically stop being President just because he was convicted and sentenced to more than a 12 month prison sentence. He could of course resign or the then pro-Zuma National Executive Committee (NEC) of the ANC could ask him to resign. Or the National Assembly could institute a vote of no confidence in him and his cabinet, which would only happen in our electoral system if the MP’s were so instructed by the then pro-Zuma NEC.

Finally the President could be removed from office in terms of section 89 of the Constitution if two thirds of the members of the National Assembly passed a resolution in this regard on the grounds of a serious violation of the Constitution or the law. One can assume it would never get to this as the ANC NEC would make sure of that.

But we have assumed many things, so maybe I should not say that.

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