Anatomy of a constitutional crisis

2014-10-07 14:00

Three weeks ago, it was President Jacob Zuma who was pushing modern South Africa towards its first major constitutional crisis by refusing, in a hostile letter, to accept the authority of the Public Protector, Thuli Madonsela.

Now it is Parliament, or at least the ANC members of the ad hoc committee on Nkandla, who, in seeking to protect their president, have taken over that role.

But strip away the filibuster and flannel, and it is the same issue that lies at the heart of the matter: are Madonsela’s recommendations binding on the government?

“No,” says the ANC.

Section 182(1)(c) of the Constitution says the Public Protector “has the power?...?to take appropriate remedial action”.

The Constitutional Court has not yet been provided with an opportunity to interpret what this provision means, but that day might not be far off.

The ANC asserts that Madonsela’s recommendations are merely advisory and can, in effect, be second-guessed by President Zuma and Parliament.

If the architects of the Constitution had intended the Public Protector’s findings to be “advisory” recommendations, then they would have said so since, in most cases, the remedial action will be implemented by the government, not by Madonsela’s office?–?‘take’, in context, must therefore mean or be analogous in its meaning to ‘order’.

In the Nkandla case, she ruled that Zuma should pay back a reasonable amount of the cost of the upgrades that should not have been borne by the public purse.

The Public Protector’s view, expressed in an affidavit she attested to in another case – the DA v SABC & others (where the DA challenged the appointment of Hlaudi Motsoeneng as COO of the SABC by the minister of communications)?– that “reports issued by me, in the execution of the constitutional mandate conferred on the institution of the Public Protector, are binding and enforceable unless set aside by order of court following a review application”.

If the executive or Parliament were to review the remedial action, this would undermine the authority of the Public Protector. Section 181(2) states explicitly that chapter 9 bodies are “independent, and subject only to the Constitution and the law”.

Like all chapter 9 institutions, the Public Protector is accountable to the National Assembly, but this cannot mean that Parliament can tamper with its reports or findings.

In terms of section 181(5) of the Constitution, chapter 9 institutions “must report on their activities and performance of their functions to the Assembly at least once a year”. This accountability relates to the overall performance of its mandate, budget and administration, among others.

On a specific investigation, it is Parliament’s responsibility to support the Public Protector and ensure that the executive?–?which is also accountable to Parliament?– implements the remedial action.

The ANC delegation in the ad hoc committee asks: “How can the Public Protector’s authority be greater than the elected members of Parliament?”

The legal answer is simple. In the mid-1990s, South Africa turned its back on parliamentary sovereignty and chose to be a constitutional democracy. The Constitution, not Parliament, is supreme. Thus, as a constitutional body, the Public Protector’s word is final, not that of Parliament.

That the ANC blocked the ad hoc committee from taking legal opinion on the main point at issue suggests that it is contemptuous of the law and the Constitution, even though this may render Parliament more vulnerable to a legal challenge on the ground of irrationality.

If the ANC disregards the remedial action in the Public Protector’s report and tries to get Zuma off the Nkandla hook, then a constitutional crisis is inevitable.

Naidoo and Calland are members of the Council for the Advancement of the SA Constitution, which Naidoo serves as executive director. Calland is also associate professor in public law at the University of Cape Town

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