Did Zuma flout the Constitution with his state capture announcement?

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On Tuesday night President Jacob Zuma announced that a commission of inquiry into state capture will be appointed and chaired by Deputy Chief Justice Raymond Zondo.

The announcement comes after the North Gauteng High Court ruled that the remedial action recommended by former public protector Thuli Madonsela in her State of Capture report is binding.

While Zuma’s announcement has been welcomed, there is uncertainty about why he hasn’t withdrawn his appeal against the High Court’s judgment that he appoint the commission, and why the terms of reference for the commission's probe weren’t announced.

UCT constitutional law expert Prof Pierre de Vos sheds some light.

Why is the president’s announcement of a commission of inquiry into state capture contradictory and possibly unconstitutional?

As the president is still appealing the High Court judgment, he is not currently bound by the public protector’s remedial action and he therefore didn’t have to announce the commission of inquiry now. If his appeal is successful the appointment of the commission will be unconstitutional and invalid and would have to be disbanded.

What he’s doing by announcing the commission is he’s saying he believes he is acting unconstitutionally but he’s nevertheless continuing with his appeal. Whether it is unconstitutional or not... we’ll have to wait for the court to rule on the appeal.

If he continues with the appeal, then he has basically decided to implement a decision that he thinks is wrong and wants overturned. The question becomes, “why did he do this?”

He says because he thinks state capture is so important. That is a new line of argument that we haven’t heard from the president before, so the only conclusion we can reach based on his previous statements on state capture is that he is doing it for political reasons.

Why weren’t the terms of reference for the commission’s investigations announced along with the name of the judge to head it?

While the announcement of a commission of inquiry usually includes the terms of reference, it should be noted that we don’t have a commission of inquiry yet, because it hasn’t been gazetted yet. Usually what happens is when there’s a formal appointment of a commission in a gazette, the terms of reference are included there.

What we have for now is just an announcement of the intention to set up the commission of inquiry. I suspect the announcement was done without the terms of reference because of time constraints and the president wanting to do it before this week’s NEC meeting.

Does the president have the power to broaden the terms of reference beyond what the former public protector recommended in her report?

At the moment he does and for two reasons.

Because he is still appealing the judgment that ordered him to set up the commission that original judgment is not operational. So he is not yet bound by the public protector’s report or by the High Court judgment. Until that case is finalised he can say anything he wants.

Even if he was bound there is nothing in the report that says that he can’t go beyond the scope.

Madonsela has said it’s imperative that the commission focus only on the issues pointed out in her report. Would it be problematic if Zuma broadened the scope of the investigation?

On the one hand, you might want to broaden the scope because of people who complain that only one side is being investigated and want to make political capital out of it. On the other hand, if you have it too broad, it ends up taking 10 years to complete and nothing eventually comes of it.

Can the terms of reference set by the president be challenged in court?

The appointment of the commission itself can be challenged on many grounds, such as that the president didn’t act rationally, or that it’s not in the public interest. But you will have to show that the terms of reference are completely irrational to be able to challenge it successfully in court, and that would be very difficult. So it would depend on what the president puts in the terms of reference. If, for example, he excludes himself from the investigation that could be grounds for a court challenge. 

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