Article by listed attorney: Fawzia Khan
The matter of accountability by public office bearers and the abuse of state funds and resources, continues to dominate the economic, political and civil sectors of the country and remains the current topic of discussion for most ordinary South Africans. This follows the Constitutional Court ruling in the case where the Economic Freedom Front and the Democratic Alliance jointly took the President of South Africa, the Speaker of the House and the Minister of Police to the Constitutional Court, for failing to abide the report of the Public Protector, Thuli Madonsela. The Public Protector investigated and found that President Zuma had misused certain state funds in his private residence, Nkandla and ordered him to pay back a reasonable portion of the improper expenditure. Up until then, President Zuma and the National Assembly were of the view that the Protector’s report was merely a recommendation and not binding.
The Public Protector’s report found that by effecting certain upgrades on his Nkandla homestead, the President breached the code of ethics as set out in our Constitution. The President and his family were thus unduly enriched at the expense of the State. One of the key foundations in our reasonably young democracy lies in the establishment of our constitution. This constitution underpins the values to be embodied by all the people of this country, without discrimination whatsoever and also provides checks and balances to those tasked with leading its citizens. Credit must be given to the visionary state elders who recognized the need for such a blueprint to take the country forward. In 1996, The Constitution of South Africa Act 108 of 1996 was enacted and the Constitutional Court came into existence.
On Thursday morning 31 March 2016, many South Africans were glued to their television sets as the Constitutional Court delivered its live judgment, to a country keen and eager to hear its pronouncements on the matter.
As it turned out, I was in my car driving at that time and listened to the judgment on radio. Hearing Chief Justice Moegeng set out clearly what the powers and functions of all public office bearers are, the need to protect our rule of law and prevent abuse of power was music to my ears. It gave me and I’m sure millions of fellow South Africans a deep sense of pride that the highest court in the land recognized and was prepared to act in a robust and fearless manner against any person who acts contrary to the constitution, including the holder of the highest office in the land, namely president of the country. The message was loud and clear. The values enshrined in the Constitution were crucial to our democracy and had to be observed scrupulously or face a ‘constitutional crisis of great magnitude’. We are all aware that in order for effective governance, there must be a true separation of powers in the executive, legislative and judicial arms of government, and all these are to be respected and enforced.
The Concourt found that action taken by the Public Protector, Thuli Madonsela, against President Zuma was binding. Her report was not merely a recommendation. It said that the President’s failure to comply with the report was inconsistent with our Constitution and invalid. Further that the National Assembly’s conduct in absolving the President from complying with the Public Protector’s report was invalid and set it aside.
The Concourt also ordered the President to “reprimand the Ministers under whose watch State resources were expended wastefully and unethically on the President’s private residence” and declared that the President failed to fulfill his constitutional obligations‚ in terms of sections 83‚ 96‚ 181 and 182 of the Constitution of South Africa.
The judgment brought into sharp focus what the constitution of our country will allow in matters relating to public office bearers, the rule of law, accountability and the like. The highest court in the land has definitively cleared up many issues surrounding the role and powers of public office bearers, including the president himself. The Constitutional Court said that the President as the Head of State and of the National Executive must always act in an exemplary manner. One of his functions is to ensure the ‘maintenance of orderliness‚ peace‚ stability and devotion to the well-being of the Republic and all of its people’. The court said that the National Assembly is the voice of all South Africans‚ especially the poor‚ the voiceless and the least remembered. The National Assembly also needs to be the “watchdog of State resources‚ the enforcer of fiscal discipline and cost-effectiveness for the common good of all our people” and must ensure that the functions of the Executive and State organs are properly executed.
The National Assembly is also that body which must hold the Executive accountable for all promises made in the State of the Nation Address‚ budget speeches‚ policies‚ legislation and the Constitution.
Turning to the role of Parliament, the Constitutional Court said that it is the “mouthpiece‚ the eyes and the service-delivery-ensuring machinery of the people” and must take into account the needs and concerns of the broader South African public.
Since the ruling by the Constitutional Court, President Zuma has publicly acknowledged his acceptance of the judgment and apologized to the country. Many however feel that given the gravity of the situation, President Zuma’s apology does not go far enough. Given the harsh criticism by the Constitutional Court that President failed to conduct himself in terms of the Constitution, senior ANC stalwarts such as Ahmed Kathrada, many organizations across the political, economic and social spectrum, unions, the defence force as well as the ordinary ‘man in the street’ have said that the President step down from office.
Whether or not President Zuma heeds the call to step down remains to be seen. The rest of the country waits with bated breath to see how this ruling will eventually play out. Whatever the outcome though, the landmark ruling by the Constitutional Court is a game changer and cannot be ignored by those entrusted to lead the country.
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