As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
During the USA Presidential campaign, vice presidential candidate Sarah “Barracuda” Palin was rightly lambasted after giving a disastrous and laughable interview to Katie Couric. The most quoted section dealt with her lack of foreign policy experience and went like this:
Couric: You’ve cited Alaska’s proximity to Russia as part of your foreign policy experience. What did you mean by that?
Palin: That Alaska has a very narrow maritime border between a foreign country, Russia, and, on our other side, the land boundary that we have with Canada.
Couric: Well, explain to me why that enhances your foreign policy credentials.
Palin: Well, it certainly does, because our, our next-door neighbors are foreign countries, there in the state that I’m executive of.
Couric: Have you ever been involved in any negotiations, for example, with the Russians?
Palin: We have trade missions back and forth, we do. It’s very important when you consider even national security issues with Russia. As [Russian Prime Minister Vladimir] Putin rears his ugly head and comes into the air space of the United States, where do they go? It’s Alaska. It’s just right over the border. It is from Alaska that we send those out to make sure an eye is being kept on this very powerful nation, Russia, because they are right there, they are right next to our state.
Last night while watching the ETV interview with President Jacob Zuma, it suddenly dawned on me: maybe President Jacob Zuma is our Sarah Palin! Like Palin, President Zuma has charisma, glamour and the common touch. Like Palin our President is much loved by his core supporters who believe that he is being victimized by snooty (or even racist) elites with no respect for traditional values. Like Palin, President Zuma can charm individuals when he meets them. Like Palin, Zuma has an interesting family life. And like Palin he looks completely and embarrassingly out of his depth when confronted by an intelligent and probing interviewer on TV.
Nikiwe Bikitsha did a brilliant job in the interview: she was respectful and courteous (as one should be when interviewing the country’s President to show respect for the office of the President) while asking probing and pointed questions and following up the many evasive and often misleading or plane wrong answers with pertinent follow up salvo’s – always humbly nodding along as the President basically admitted that he did not know much about what was going on in his government. Our President kept on saying that discussions were continuing on many pivotal issues for South Africa (nationalization, schooling, Julius Malema, the NPA) but that nothing has been decided yet and that he personally had no views on any of these issues.
When asked about whether he would pardon Shaik, he wisely decided to skirt the question because the issue is so politically sensitive and because his advisors must have told him that he should not say anything about it until they have found a way of managing the inevitable fall-out of a possible pardon. Unfortunately, the President skirted the issue in such a ham-handed way that he created more trouble for himself.
“Why should I pardon him when he has not applied?,” he said. “I have nothing in front of me. If there was an application before me, you should ask the question. Why should I respond if I do not have the application before me?” Unfortunately the Presidency issued a statement on 19 October 2009 that contradicts this statement:
The Presidency received an application for pardon from Mr Shabir Shaik last year, on 24 April 2008. The application will be processed like all other applications
The President has therefore indeed received a pardon application and he therefore does have an application in front of him. He might not have read the application himself, but he does have it on his desk and should know this as his office has confirmed this in an official press statement. Oops!
This is not a life and death issue and will not influence the legality of any pardon when it is eventually granted, but it was another embarrassing gaff on the part of the head of the South African executive which creates the impression that the President is either not aware of what is going on in his own office or that he is perfectly prepared to tell a whopper in order to avoid answering an awkward question.
But maybe there is a kinder explanation for the seeming Palinesque inability of President Zuma to answer any of the questions posed to him and his seeming lack on knowledge and grasp of the issues confronting South Africa. Maybe he avoided answering the questions because he is afraid.
In this regard the ghost of former President Thabo Mbeki seemed to hover over proceedings.
After all, Mbeki lost his job because he had opinions of his own and sometimes expressed them despite the fact that the ANC leadership had not “pronounced” on an issue. Watching President Zuma I got the palpable feeling that the power has shifted decisively from the union buildings to Luthuli House and that instead of constitutional government we now have a party political government.
Our Constitution is silent on the relationship between the executive and the political party in power. While it makes clear that the President is the head of the executive and that the executive governs the country (along with his cabinet members who are all accountable to Parliament), this power is a tenuous one – as Mbeki found out when he was fired.
Because the Constitution also allows the majority party in the National Assembly to “recall” the President by adopting a vote of no confidence against him, the President has no independent power base separate from the party who elected him. Given the fact that members of the National Assembly serve at the pleasure of the party and can be removed from their jobs at any time, the party leadership has a decisive say over members of Parliament, can therefore instruct them to take any action in Parliament and can thus also instruct them to fire the President. Through this threat of removal the party leadership can decide who serves as President and can also ensure that it tells the President how to serve.
President Zuma seems so scared of the party leadership – from Julius Malema down (or is it up?) – that he acts more like an automaton than like the leader of a modern constitutional democracy.
This latter explanation for the President’s embarrassing interview will mitigate against the view that President Zuma is no more than our own Sarah Palin. Let us hope the second explanation is true. Otherwise our President would not only be rather dim-witted (a bit like PW Botha who was definitely not the sharpest tool in the shed), he would also be out of his depth, ignorant and spineless. And if that is the case, we are all in big trouble – unless Kgalema Motlanthe or Gwede Mantashe is really governing the country from behind the scenes, in which case we might not be in as much trouble as it might have seemed from watching the interview.BACK TO TOP