JOHN GI CLARKE: 'The judiciary has granted Ramaphosa ‘war powers’. He needs to use them boldly'
'All judges agreed that Zuma was guilty of gross ‘over-reach’ as head of the executive'
“But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
James Madison: The Federalist Papers. 1788.
If teachers of law, history and politics ever need a contemporary example of a political situation that approximates to this quote from James Madison (the main author of the US Constitution) they need go no further than President Jacob Zuma.
Moreover, if they need an example of “the necessity of auxiliary precautions”, they would need to go no further than the large volume of High Court and Constitutional Court judgements that were handed down over the month of December 2017.
A month ago, when Gauteng Judge President Dunstan Mlambo handed down the first of three damning judgements against President Jacob Zuma in the North Gauteng High Court, a metaphor began forming in my mind. Might a good court judgement be comparable to a good slice of bread? It needs to be fresh, evenly buttered and well spread.
Here is a summary of recent events.
On 8th December Justices Mlambo, Ranchod and Van Der Linde sliced Corruption Watch and Freedom Under Law vs President of SA et al finely, finding President Zuma’s appointment of Advocate Shaun Abrahams as National Director of Public Prosecutions to have been unlawful and based on deceits and lies. They then buttered the slice with an appetising spread by authorising the Deputy President (currently Cyril Ramaphosa) to now make a new appointment because the President was conflicted and “unable to perform his function” in this specific regard due to the fact that he faces charges of corruption that the NDPP must press.
Five days later, on 13th December Justice Mlambo handed down two other judgements. Together with Justices Borucowitz and Hughes they dismissed the President’s application to have the court set aside the Public Protector’s remedial action that obliged the President “to appoint a commission of inquiry within 30 days, headed by a judge solely selected by the Chief Justice who shall provide one name to the President”. Recall that on October 2016 the former Public Protector Advocate Thuli Madonsela had completed the report within hours of the expiry of her constitutional mandate. Her astute remedial action effectively tied up the President in a proverbial Gordian knot.
More about that later.
To really ruin the Zuma family Christmas, Justice Mlambo then handed down a third, this time with concurrence from his deputy, Judge Mojapelo, and Judge Fourie, to add a discomforting noose to the knot. They found that the President must personally bear the legal costs with respect to his urgent interdict application to prevent the finalisation and release of the Public Protectors State of Capture report. He failed in his application. The Public Protector, the EFF, UDM, COPE, the DA and Vytjie Mentor (a former ANC MP who had submitted evidence to the Public Protector that she had been offered a cabinet post by the alleged capturers, the Gupta brothers, if she did their bidding) joined up to argue that his legal action had nothing to do with his office as President. It was entirely a personal matter, which meant that Zuma had no right to use the State Attorney and public money to fight a case which he was destined to lose anyway.
The bread slicing and buttering process was so complex, and the issues so important, that another senior judge had been tasked to project manage the torrent of litigation precipitated and amplified by the the President’s “lawfare” strategy, to lessen the likelihood of higher courts over-ruling the judgments on appeal. The time and judicial resources of eight judges was occupied by Zuma’s use of the law to evade justice. To add the insult of contempt to the injury of arrogance, all of this litigation was funded from the public purse.
I was particularly sensitive to this abuse of judicial resources because in October Advocate Geoff Budlender SC had to make yet another expensive, unbudgeted trip from Cape Town to Pretoria to represent my friend and fellow activist Sinegugu Zukulu to argue against the lawfare strategy of another serial abuser of the judicial system, the South African National Roads Agency Ltd (SANRAL). In a similar ‘litigation by attrition’ strategy SANRAL and the Minister of Environment had tried to prevent Sinegugu Zukulu and other rural residents from the amaDiba community on the Wild Coast from seeking a judicial review of the N2 Wild Coast Toll road environmental authorisation. Justice Tuchen had summarily dismissed SANRAL’s interlocutory application six weeks before. Predictably Government appealed, necessitating yet another trip by advocate Budlender to the North Gauteng High court.
On 1 December 2017 Judge Tuchen kicked off a busy month for the North Gauteng High Court by kicking Sanral’s interlocutary application so far out of the park, that they will never find the ball. It took a mere fifteen minutes for him to dismiss the application for leave to appeal.
My report on all that filibustering litigation, One Just Man Standing, will help to explain why the President's extreme over-indulgence in legal evasiveness and abuse of the judicial process left me searching for stronger adjectives to describe his conduct. The words which Justice Mlambo et al, had already used — improper, unreasonable, grossly remiss, unethical, high-handed, wayward, flagrant disregard of constitutional norms, obstructionist, reckless, indefensible, unlawful, illegal — all fell short to adequately describe how I was feeling toward the President and his keepers. The contrast between the burden that the powerless Sinegugu Zukulu had to bear to obtain justice, and the reckless indulgence of the powerful and corrupted President Jacob Zuma to evade justice still leaves me grasping for words. I am still turning the pages of my bible to find an equivalent situation and some appropriate biblical adjectives to hurl at Zuma and his keepers. I am open to suggestions.
Before the ink was dry on the judicial signatures, Zuma served notice of his intention to seek leave to appeal the judgments wherever he could.
Next came the ANC Electoral Conference. Losing the battle to obtain judicial cover to get away with his sins, he tried to curry political favour by another reckless announcement calculated to boost the campaign of his former wife Dr Nkososana Dlamini Zuma to succeed him: free education for the masses.
It failed, however, to sway the conference from electing her rival Cyril Ramaphosa, who is currently the Deputy President — the same man empowered to appoint the next NDPP — as the new ANC President and heir apparent to become State President after the next elections. That is if the ANC happens to win at the polls. Before every election for the past twenty years that has been a foregone conclusion. That is no longer so.
The election of Ramaphosa provided those within the ANC who still seek the promise of justice with political ‘ham’ to add to the judicial ‘bread’ buttered by seven senior judges of the North Gauteng Division of the High Court..
Then on the last working day before the end of 2017 the Constitutional Court handed down another more thickly sliced judgement with no less than four ‘spread’s — one majority judgement and three minority dissenting judgements — all proceeded from the same assumption: that Jacob Zuma had indeed failed to uphold the Constitution and had violated his oath of office thereby providing grounds for impeachment.
Whether or not the remedy prescribed was judicial over-reach, should not distract one from the consensus. All judges agreed that Zuma was guilty of gross ‘over-reach’ as head of the Executive, and that the Speaker had clearly over-reached herself to protect him while all the evidence pointed to the fact that he could not escape responsibility for the exorbitant expenditure of state funds on his private residence at Nkandla. The Judiciary had ruled in support of the remedy prescribed by the Public Protector. Zuma must pay back the money.
With four judgements from the first part of December and four at the end of December, the only question now left is whether the ANC has the guts to digest the dagwood sized judicial sandwich and make sure that Jacob Zuma becomes, well, toast.
If they again fail to do that, the entire party go down in history as the liberation movement that failed to liberate itself from the same corrupting dynamics of power that bothered James Madison at the end of the 18th Century, and which in turn came to epitomise colonial rule under Cecil John Rhodes at the end of the 19th Century, and then again under the apartheid regime in the 20th Century.
Why would the 21st Century be any different?
There is a clear sequence to the decline of corrupted leaders and the parties that keep them in power. First they become blind, then bound and finally burned. It seems to me that the settings on the toaster have been turned up by the judiciary, leaving the ANC with only one option to avoid becoming burned toast with Zuma. He has to go, and have his day in court, but this time in a criminal trial for fraud and corruption.
While casually watching a History Channel documentary 'Ultimate guide to the Presidents', I learned that President Abraham Lincoln actually had no civil authority to sign the Emancipation Proclamation on September 22 1862 a startling thought hit me. The Judiciary has in fact given Cyril Ramaphosa special ‘war powers’. He needs to use them boldly.
Lincoln’s proclamation that as of January 1, 1863, all slaves in states in rebellion against the Union “shall be then, thenceforward, and forever free” was never sanctioned by Congress, least of all his Republican Party. The body count in the US Civil war was steadily mounting to the 600,000 mark. Although the war had started over a contestation of principle of State sovereignty and the right to regulate their own affairs without Federal Executive interference over the course time it became ever more a war about human equality. Lincoln, as president of the Union states, was delegated by Congress with special war powers in his capacity as Commander in Chief to deal with any “wartime necessity”. He used them boldly, taking a gamble which paid off. The Union armies were infused with an emergent normative moral absolute and they prevailed over the Confederate armies, and brought the war to an end. As the Northern armies marched south thousands of slaves were freed in their wake.
Ramaphosa does not even need to take a gamble on the normative matter facing him. He has been authorised by the Judiciary to act. Politics may be the art of the possible but this is not really a political decision, it is an administrative justice decision. Even if Shaun Abrahams and President Jacob Zuma don’t like it, there is really nothing they can do about it. Its the law. This time law promising justice, rather than evading it.
It might be stretching it conclude that Ramaphosa’s decision as to whom to appoint as our new NDPP is equivalent in historical significance to Lincolns emancipation proclamation, but there can be no doubt that the emancipation of the State from captivity to the same sinister, exploitative forces that slavery feeds on, is simply the right thing to do.
Returning to the Gordian Knot, Cyril Ramaphosa need not see it (as Zuma presumably does) as an impossible problem to be solved, but as a mystery to be embraced.
When people in crisis come to me for counselling I use the symbol as a representation of the need for an integration between the Cognitive (head), the Affective (heart) and Executive (will) energy centres that motivate all human behaviour. Each individual has a stronger bias toward one over the other two, but for completeness needs to embrace and internalise the other energy centres. This is the plot line of the classic story of Dorothy and the Wizard of Oz. In a dream in which she gets sucked up in a tornado, and finds herself walking along a Yellow Brick Road signposted to the Wizard’s palace. As she journeys long the road she meets three characters, Tin Man (who has no heart), Straw Man (who has no brain) and Lion (who has no courage). She befriends them and together they are able to keep going.
The three friends are archetypal projections of suppressed and denied aspects of herself. Upon finally getting to meet the “Wonderful Wizard of Oz” (dare I say at his Nkandla) they discover him to be a pathetic figure. A kind of mouse with a microphone. It was the journey of self awareness and integration that was more important than the destination.
“But thats about ones personal life journey. Politics doesn’t work that way” one might say.
In fact the Gordian Knot can also represent the necessity for a country to strike the right balance of integrating the Executive (will), Judicial (head) and Legislative (heart) aspects of the nation into a balanced harmony. Unfortunately Jacob Zuma and his keepers have equated Power with Authority, and falsely construed matters as a struggle for power, rather than the attainment of authority. In the process of clinging to power, they have eroded the authority and legitimacy of the State as a whole. The paradox is that Sinegugu Zukulu was powerless, but his founding affidavit shows someone with immense authority. SANRAL don’t want the matter to proceed to judicial review because I think their lawyers know that the judiciary is going to find in Zukulu’s favour, and SANRAL will be obliged to start all over again. Hence the interlocutory delay tactics. Likewise it seems the ANC would rather stick with the devil they choose to know than humble themselves to the angels they refuse to know, as I have opined before.
But Zuma could yet surprise us, and ponder the famous quote of the abolitionist Theodore Parker who predicted the inevitable success of the abolitionist cause in the mid 19th Century.
“I do not pretend to understand the moral universe; the arc is a long one, my eye reaches but little ways; I cannot calculate the curve and complete the figure by the experience of sight; I can divine it by conscience. And from what I see I am sure it bends towards justice.”
We do not break the laws of the moral universe. We break ourselves upon them.