THE INFANTILE BUT DANGEROUS PROPOSALS BY A ZUMA IN A PLIANT SOCIETY

The Pen Behind Article: Mr Mpumelelo Mkhabela of  The Sowetan

IN JACOB Zuma we have a president  we can barely trust. He suffers from  what psychologists call acute cognitive dissonance – acting against your own  commitments.

Zuma does not miss an opportunity to  voluntarily tell the nation and the international community how much he admires  Nelson Mandela and how committed he is  to following in his footsteps.

When Zuma took over the reins he  undertook to uphold the values of the constitution. He even spoke fondly of the need  to protect the freedom of the press. Fast- forward to 2012 , Zuma wants to change  the powers of the Constitutional Court in a  way that threatens to tear the constitution  apart. In fact, he naively believes he has  the powers to do so. The ANC does not  have a two-thirds majority to amend the  constitution. Even if it did, amendments to  alter the powers of the Constitutional  Court would more than likely be declared  unconstitutional by the court itself!

Although we know he does not have  that capacity to change the solid edifice  upon which the court rests – except by  piling it with pliant judges – it is worth  interrogating some of his misinformed  public utterances.

He is challenging the decision-making  process of the court. He is baffled why  judges reach different conclusions on cases. He was quoted in The Star as having  said these were the reasons why the powers of the Constitutional Court ought to be  tamed.

Shouldn’t he perhaps telephone Barack  Obama, the US president, a lawyer by  training, for advice? Maybe the fog in Zuma’s eyes could be cleared if the basic  universal legal processes were explained  to him by a counterpart.

I so wish our president could take a few  minutes out of his obviously hectic schedule – expanded spousal office and all – to  familiarise himself with the constitution. It  is almost as if the oath of office was  rammed down his throat when he agreed  to lead the way in promoting the supreme  law of the republic.

His inauguration speech was embellished with quotations from Mandela and  a declaration of fidelity to the laws of the  republic (which in case he was not aware,  include jurisprudence emanating from  courts). Forget the lack of originality in  the inauguration speech, it gave an impression of a president who was not as  bad as he was made to be – or made  himself to be – when he was defending  himself against countless allegations.

He quoted extensively from Mandela’s  speeches to cleanse himself and thereafter  went on to act in a way that sought to  undermine the values for which Madiba  stood.

Let’s revisit the significant things Madiba did to lay the solid constitutional foundation which Zuma now wants to unravel.  More than a decade ago, after members of  the constitutional assembly – those who  drafted our constitution – had spent long  nights crafting the document, Mandela  handed it to the Constitutional Court to  certify it. This was in line with the agreed  constitution-making rules.

And Zuma should know the story better  than anyone of us. He was a leading member of the ANC, which was a leading party  in the transitional negotiations towards  democracy.

The court was tasked to judge the document based on a certain set of constitutional principles adopted among political parties during the negotiations.

Mandela submitted to the court what he  thought was an impeccable product of the  constitutional assembly.

To Mandela’s surprise, the Constitutional Court rejected the first draft of the  constitution. In effect, it declared the constitution unconstitutional. What Mandela  did next set the tone for South Africa and  was indicative of the kind of country the  ANC wanted to build under his leadership.

We were not about to join the league of  kleptocratic republics. Africa had enough  of those. Apartheid South Africa was one  of them, with its own distinctive corrupt  racist oligarchs.

Mandela decided South Africans deserved better than that. They had been  through a system of unguarded parliamentary sovereignty. Mandela wanted to give  meaning to the checks and balances contained in the constitution.

And the way to do it was to accept the  verdict of the court, and in the process  affirm it and strengthen its legitimacy.

It was a necessary step to the realisation of the democratic ideals that he and  others like Zuma had fought for: the rule  of law. The old Justice Stratford notion  that “parliament knows best, end of inquiry” had to stop.

Under the apartheid system, parliament  and the executive could do whatever they  liked with their illegitimate authority.  They had unbridled power.

And as Antonin Scalia of the US  Supreme Court of Appeal once remarked:  “Lord Acton didn’t say power tends to  purify.” Now, can absolute power of the  executive and parliament, which is what  Zuma wants, have the purifying effect on  him and his government?

Well, one way to look at it is that Zuma  is implying that we the citizens should  give him absolute power in return for an  absolutely clean government.

He has spoken against corruption and  has gone to the extent of supporting Cosatu’s Corruption Watch initiative. He believes he deserves our trust. Can we honestly say we trust him?

He could also be implying that the Constitutional Court is a nuisance that blocks  the full exercise of nakedly corrupt intentions. But, that’s precisely why it was  established: to hold the executive in check.

That is why we have judicial review in  terms of which the court can set aside  laws passed by parliament. Courts can  overturn executive decisions.

That is why unlike in other countries,  including old democracies, all South  Africans, regardless of position and status,  are equal before the law. A court here can  find a president or his personal advisor  guilty and send them to jail.

The need to entrench the principles of  equality before the law and of executive  accountability was the reason Mandela defied some of his comrades and acceded to  a court subpoena when rugby tycoon  Louis Luyt challenged him in court.

Mandela was not doing so because it  was a nice thing to do. Having spent the  prime part of his life in prison, far from  the warmth of his family, the last thing he  would have wanted was an irritation from  people who benefited from the old establishment. He could have balked. There was  abundant populist sympathy.

But he had a far bigger vision of the  country than the allies of the oppressor  and some of his comrades.

If Zuma had his way, that vision would  be dismantled as speedily as possible.

Mpumelelo Mkhabela is editor of the Sowetan

INSIGHT: Zuma applying wrecking ball to Madiba’s vision:

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