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President Jacob Zuma’s efforts to avoid his day in court and avoid a state capture commission of enquiry, suggests that the accusations made are not without foundation.
A very important question is, however, how it was that this whole situation was allowed to develop? Is the responsibility for the situation solely that of Jacob Zuma?
During the United States (US) presidential election campaign, Brook Spector, a former US diplomat, said that it would not make much difference which candidate won. The probable reason why he said this, is that under the Constitution and the Rule of Law in the United States, there are checks and balances to ensure that no one, including the president, has unlimited powers. The name the “rule of law” tends to give the wrong impression as to what it means. An important meaning is that people, and especially government officials, should act according to the constitution and the law and not arbitrarily.
The first paragraph of the Constitution of South Africa states that one of the values on which South Africa is founded is “1(c) Supremacy of the constitution and the Rule of Law.” This means that in South Africa there should also be checks and balances to ensure that no one has unlimited power and everyone must be accountable.
To ensure accountability there needs to be a separation of powers between the legislature (parliament), the executive (the president, cabinet and government departments) and the judiciary (the courts). This means that parliament passes laws and that neither the executive nor the judiciary may legislate. Only the executive may implement the laws and the judiciary interprets the laws and the constitutionality of laws passed by parliament.
The courts also decide whether the actions of the executive are legal and in accordance with the constitution. Under section 42(3) of the constitution, one of the duties of parliament is ‘scrutinising and overseeing executive action”. This means that the executive, including the president is accountable to parliament.
When former ex-President Thabo Mbeki centralised power in his hands, this was a violation of the rule of law and therefore, the constitution. Parliament did not carry out its duty under section 42(3) of the constitution to prevent him from doing so and did not put the necessary legislation in place.
The result was that when President Zuma became president he found that he was able to exercise unlimited power by appointing people of his choice in key positions. He also assumed the power to dismiss them from their highly paid posts. It has been estimated that under President Zuma, the average tenure of a Director General of a government department is fifteen months. This amount of power in the hands of one person is an invitation to corruption.
According to Section 84(2)(e) of the Constitution, the president has the responsibility of “making any appointments that the Constitution or legislation requires the President to make”. The words “or legislation” are very important in that under the Rule of Law it would appear that parliament, in order to comply with the Constitution and the Rule of Law, has a duty to legislate as to how the people should be selected that are to be appointed by the president.
Such legislation is absolutely essential, as part of the checks and balances necessary under the Rule of Law to prevent anybody, including the president, from exercising unlimited power. The selection of people to be appointed by the president should be a transparent process, held in public, to ensure that the best qualified person is appointed. Section 84(2)(e) does not give the president the power to dismiss officials. Legislation should give officials the right to a fair hearing in public before they can be dismissed so that they cannot be dismissed arbitrarily.
The primary responsibility for the undesirable situation that exists in South Africa at present lies with parliament and not President Zuma. Parliament has failed in its constitutional duty to pass the necessary legislation to ensure the supremacy of the Constitution and the Rule of Law.
It has also neglected to scrutinise and oversee executive action under section 42(3) of the Constitution.
President Mbeki, and after him President Zuma took advantage of the fact that parliament failed to carry out its Constitutional obligations to ensure the supremacy of the Rule of Law. According to the Constitution, “All constitutional obligations must be performed diligently and without delay." Parliament’s neglect to carry out its constitutional obligation to implement the Rule of Law dates from 1996.
This is hardly “diligently and without delay”. Even at this late stage, if parliament were to start passing the necessary legislation, as required by the Constitution, to ensure the supremacy of the Rule of Law, it would halt and reverse South Africa’s slide towards becoming another basket case like Zimbabwe. It would also make it very difficult or impossible for President Jacob Zuma to dodge his day in court or to avoid a commission of enquiry into state capture. More importantly, it would also ensure that future presidents would not have unlimited power.
