Sunday, November 30, 2008

SA’s strange new constitutional situation

The recent political shake out in the ruling African National Congress (ANC) brought about a unique political structure in South Africa. During previous post apartheid elections the voters would normally decide who would be the largest party and the leadership of the winning party would assume power in all aspects of government.

Separation of powers, is the model usually used today for the governance of democratic states. Under this model, the state is divided into branches or estates, each with separate and independent powers and areas of responsibility. The normal division is into an executive, a legislature, and a judiciary. A country’s constitution, laws and parliamentary regulations provide the necessary checks and balances to ensure the separation of powers and to regulate the three estates.

Political parties have their own constitutions, and one would have expected that there would be no clash between the constitution of the ruling party and that of the state.

Some two years ago the constitution of the ANC was changed during a national conference at the insistence of the Mbeki supporters. A motion was accepted by the ANC’s congress to change the constitution such that, although it is desirable for the leader of the ruling party to be the President of the country, it would not be essential. It was argued at the time that the country’s constitution limited the state President’s tenure to two terms, that limitation should not apply to the party leadership as well.

Political observers realized at the time that the subtle change would open the back door for Mbeki to be elected as president of the ANC, to allow a surrogate president, (he publicly envisaged that to be a woman) would become the state president.

She would take her instructions on policy matters and key appointments from him at Luthuli House in Johannesburg and not from the Presidency in Pretoria, the country’s capitol. The change would allow Thabo Mbeki to effectively rule over the ANC and hence over the state, after he retired as state president in the 2009 elections. The country’s constitution prevented him to serve in a third term of office, but this Machiavellian manoeuvre would have given him effective control over the state, even though he would not be a member of government any longer. Two centers of power would thus be created, with the president of the ANC being the de facto supreme power without any constitutional constraints, checks or balances.

Not being bound by the country’s constitution or the rules of parliament, he could interfere with impunity with any branch of state. That was the bed Mbeki made for himself in an effort to cling to power as long as possible, in a move rather more elegantly than Robert Mugabe, his mentor in Zimbabwe.

It is unlawful for the state President or indeed any cabinet minister to interfere with, for instance, the National Prosecuting Authority (NPA), who has the sole right to decide whether to prosecute or not. That was exactly the point on which Judge Chris Nicholson declared the prosecution of Jacob Zuma to be unlawful, as he found that there may be merit in Zuma’s assertion that he was being persecuted by the NPA, acting under pressure from the President, to discredit Zuma, preventing him from becoming the country’s next President.

During the following National conference at Polokwane in December, 2007, the Zuma supporters prevailed, catching the Mbeki camp napping. Jacob Zuma inherited a situation where he could neatly avoid being the country’s interim state President when Mbeki was recalled by the new leadership, until his name had not been cleared by a court of law. But he would retain the chairmanship of the Deployment Committee, which decides on all key state appointments. The modified ANC constitution provided him that gap, a trap set by Mbeki’s supporters two years before.

Whilst it was illegal for President Mbeki to interfere in the workings of the National Prosecution Authority, there is nothing in hard law that prevents Jacob Zuma, the leader of the ruling party, to do so, as he is not constrained by the constitution, rules of parliament or any other laws. Jacob Zuma is just another ordinary citizen in his present capacity…

apologizing to Mr So, it would not be too far fetched for the new NPA to publicly announce that all charges are withdrawn against Mr Zuma and that he has satisfied himself that Mr Zuma is innocent of all charges of corruption against him, even publicallyZuma. Purists may argue that the NPA has more than 90,000 documents to prove Zuma’s guilt and that a prima facie case exists, but others would argue that the NPA still has to prove Zuma’s intent to defraud the state or to have actually swung any deals towards the donors.

His name would be cleared juridically and the coast would be cleared to become the country’s next state President after the April elections. In so doing he would again unite the two centers of power by reversing the strange and undesirable constitutional situation created by Thabo Mbeki.

Or would he?

0 Opinion(s):