In South Africa President Zuma (and company) loses a round to the Constitutional Court

It is now official: President Jacob Zuma must pay back the public money used to renovate his private residence at Nkandla, Kwazulu Natal. So said the Constitutional Court (ConCourt), South Africa’s highest court, in a unanimous judgment delivered in Johannesburg on March 31. But what this means for the future of the country is less clear.

Delivered by Chief Justice Mogoeng Reetsang Mogeong (a Zuma appointee to the ConCourt, it should be noted), the court adjudicated that Zuma and the African National Congress-dominated Parliament were in violation of the Constitution when they failed to implement the recommendations of the Public Protector Thuli Madonsela. Her report found that public funds had in effect been misappropriated for use at Nkandla. What was particularly egregious was not that funds were used to improve the residence’s security (a valid public expenditure) but that it had gone into non-security renovations. Her report was brushed aside and an alternative commission set up by Parliament had denied there was a problem.

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The ConCourt judgment, as summarized by a colleague of mine, a lawyer by training, from the Jesuit Institute, found:

• That the recommendations of the Public Protector were binding

• That the binding nature of the Public Protector’s remedial action should be determined on a case-by-case basis with regard to the nature of the dispute

• That the Public Protector’s remedial action cannot merely be ignored

• That the National Assembly’s institution of a parallel process was not itself unlawful but that in attempting to replace the binding report of the Public Protector, the National Assembly acted unconstitutionally and in breach of its duty to hold the executive accountable

• That the President should pay back a reasonable portion of the money spent on non-security upgrades and reprimand the responsible ministers for their role in the project

• That the President acted unlawfully and in breach of his constitutional duties to the Republic

In an address to the nation on April 1, President Zuma agreed that he would “pay back the money” but denied that he was personally to blame, passing responsibility on to the Department of Public Works. As I watched him on television (and watched his address again online), I read two things from what was not said openly by Mr. Zuma but that his body language revealed: first, a sense of shock and denial that the court had ruled against him (after all the Chief Justice who had just skewered him had been appointed under his watch by a Judicial Services Commission dominated by A.N.C. loyalists); second, a realization that he was now deeply vulnerable. Vulnerable in the sense that all his protestations of innocence and legitimacy had been overturned. Vulnerable in the sense that the rule of law had overtaken whatever illusions he’d had as president of the country and leader of the dominant party in Parliament. And vulnerable in the sense that his failure now made him a political liability to the dominant party.

Editors Note (From the Associated Press): South Africa's parliament voted on April 5 against an opposition motion to remove President Jacob Zuma, who has apologized after the country's top court ruled that he violated the constitution in a spending scandal. The parliament rejected the motion by a vote of 233 to 143 in a raucous session Tuesday in which some ruling party and opposition lawmakers jeered at each other and traded insults. The motion required a two-thirds majority for approval. The ruling African National Congress, which has supported Zuma, has a comfortable majority.
 

Shortly after that the Secretary General of the African National Congress, Gwede Mantashe, desperately tried to repair the political damage to the party by an elaborate exercise in evasion and half-truth that left none at the press conference satisfied—least of all the many formerly A.N.C. stalwarts among the press themselves—with exception perhaps of those from media owned by Zuma’s Indian backers, the Guptas. It was perversely pleasurable to hear Mantashe’s suppressed gasps as he jotted down the questions the press posed—and to see the embarrassed face and wavering voice of the A.N.C.’s fielder of questions. Had I not been in such a bad mood, I may even have sympathized with her onerous job, but I delighted in her barely concealed squirms. When Mantashe responded it was with the characteristic bluster of an A.N.C. used to getting its way—and getting away with anything short of murder in the last 22 years.

But this time no one was convinced among the press corps.

The essence of Mantashe’s rambling answers, delivered with a certain deadpan quality that seemed more desperate than confident, were a mixture of condescending evasion and a hinted promise (perhaps half believed) that the A.N.C. actually knew what it was doing. Behind the pat evasions and promises to attend to the crisis, I sensed two possible scenarios. First, a sense of unease summed up by a kind of question: How many votes will we lose in the forthcoming local elections as a result of this debacle? Second, a sense of frustration born out of long service in a party and an interest in seeing it survive and thrive: At what point does this president become too much of a liability to us? Even if he knows where the closets are in which our skeletons are buried?

The subsequent remarks by the Speaker of Parliament, Baleke Mbete (usually seen as a Zuma loyalist), denied that Parliament—read the A.N.C. majority in the house loyal to the president and the A.N.C. leadership—acted illegally or immorally in what they did. Once again, my sense of what was left unsaid challenges a straightforward reading of the event. What Parliament did—well, failed to do—was wrong. The majority of Parliament acted in contempt of the Constitution and Parliament itself. If they knew that, then their actions were criminal; if not they were incompetent and should not have been elected in the first place. No one, not least the A.N.C., believed anything other than that “the lady didst protest too much.”

Since Friday, the country—well, those who read the news, believe in democracy or are not trapped in patronage relations to the ruling party—has been reeling. We talk of moral bankruptcy and the need to get rid of Zuma and his cronies and hangers-on—and this talk comes from within the broad A.N.C. camp not captured by the Zuma faction as much as from opposition parties.

Just as we do this new revelations emerge: financial tax evasion scams by members of Zuma’s circle; police harassment of opposition leader Julius Malema; clear misuse of police powers to investigate those who challenge what we are increasingly seeing as an A.N.C.-wide endorsement of kleptocracy (rule by theft).

Maybe I read too much into it, perhaps out of an emotional and historical allegiance to what was once the party of Albert Luthuli, Oliver Tambo, Chris Hani and Nelson Mandela, my spiritual home since I grew to political maturity in the mid-1980s. But I do sense (albeit perhaps this sense is a desire to redeem the dream and tradition that was the A.N.C. I once believed in) that there are parts of the ruling party who are as disgusted as I by what has happened: veterans of the struggle against apartheid, like Ahmed Kathrada, who gave their lives and careers for democracy; many parts of the labor movement; and the A.N.C.’s political ally, the South African Communist Party, who at their best have long stood for both socialism and such liberal values as personal freedom and the rule of law. Many of these honorable people and a wide range of folk from other political parties and organizations now stand against the sleaze and lies of Zuma and company and are faced with opposition from an elite who now use organs of state for self-aggrandisement and increasingly intimidation of their opponents. I feel proud to call these opponents of state capture, asset stripping and tyranny comrades in this new struggle for the soul of South Africa.

Anthony Egan, S.J.a member of the Jesuit Institute South Africa, is one of America’s Johannesburg correspondents.

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