Presidential capture?

2016-12-11 20:46

After weeks of speculation, the president has finally responded to the release of the state capture report (The State of Capture) by announcing that he will be taking the report on review. The most obvious question to most non-lawyers is what this all means and logically if the president has any chance of succeeding in this court process. As cliché as it may sound ,there is no simple answer to this question and I won’t profess to have all the answers but what I can attempt is to deal with some of the complex questions in this piece .

Unlike the Nkandla report, the State of Capture report does not say a lot, at least not conclusively. This is not a bad thing as some might be tempted to conclude. I believe the former Public Protector (PP) displayed a lot of tact and wisdom in doing this because if she had made her report the final chapter in this saga, this report would have been reviewed hours after its release and with huge prospects of success too. By her own admission, there was not enough time to afford everyone the opportunity to make submissions or respond to various allegations and not enough resources to conduct a thorough investigation. If she had proceeded to make findings and a final determination, those individuals could easily ask the courts to set aside her report on the basis that it was not procedurally fair. By avoiding the findings aspect, she may well have avoided having the report set aside on the basis of its content.

Observations or Findings ?

One misconception about the report is that the former PP made findings of wrongdoing or guilt against the various individuals implicated. That is fiction. Adv. Madonsela skilfully avoided any such findings in her report. In fact there are no findings in her report, there are only observations. The Nkandla Report had a findings section but the State of Capture has no such section. In its place is the ‘Observations’ section. The word ‘findings’ is used a total of six times in the State of Capture report while in The Nkandla report is was used over 40 times.

Adv. Madonsela set our various facts and the possibilities arising from those facts but refrained from outright conclusions. She makes this abundantly clear in the summary. For example, in answering whether the president allowed members of the Gupta family and his son to influence his appointment of ministers, she said “It is worrying that the Gupta family was aware or may have been aware that Minister Nene was removed 6 weeks after Deputy Minister Jonas advised him that he had been allegedly offered a job.” She goes on further to say “If the Gupta family knew about the intended appointment it would appear that information was shared then in violation of section 2.3(e) of the Executive Ethics Code...” Notice the occurrence of the words ‘if’, ‘may’, and ‘it would appear’- they are used extensively in the report. This is a pattern found in her observations which distinguishes them from findings which are more conclusive. In other words Adv. Madonsela presented possibilities from the evidence before her and gave the possible effect of such possibilities being true, for example, by stating that if X did happen then it would be a violation of the Ethics Act.

She left the findings stage of the report to the Commission of Inquiry which President Zuma was meant to establish. This very Commission is where the contention is. You may recall the Nkandla report recommended that the president pay back a portion of the money spent on the upgrades. In the Capture report, the recommendation by the former PP was captured in one sentence: The President to appoint, within 30 days, a commission of inquiry headed by a judge solely selected by the Chief Justice who shall provide one name to the President.

Sounds simple enough, right? Not so.

Commissions of Inquiry in South Africa

The power to appoint commissions of inquiry at a national level is vested in the president only as per s 84 (2) (f) of the Constitution and this was recognised in the President of SA v SARFU judgment of the Constitutional Court which I will refer to in a bit more detail later. It is one of the powers that attaches to the office of the president and as is the case with any of his powers, he must exercise those powers personally and in line with the Constitution. The Constitution only recognises two other instances where a commission of inquiry can be constituted and this is at a provincial level. Section 127 gives premiers the power to constitute a commission of inquiry for matters within their competence and s206 specifically permits provinces to establish commissions for the purpose of investigating police inefficiency.

In the SARFU case, President Mandela’s decision to appoint a commission of inquiry into the running of affairs at SARFU including the lack of transformation, was challenged. One of the main reasons for the challenge was that SARFU alleged that it was the Minister of Sport and not the president who took the decision to establish the commission of inquiry. SARFU’s contention was that the president had ‘abdicated’ his powers and rubber stamped the decision he was expected to take personally. Without turning this into a lecture, the court had the following to say about the powers of the president in this regard:

  • The exercise of all public power (including the powers of the president) are subject to the Constitution and the courts can review and set aside actions of the president if these powers are in violation of the Constitution
  • The power to appoint commissions in terms of s 84 are to be exercised by the president only
  • The president may not delegate his powers to a 3rd party
  • The president may consult but must take the final decision after having applied his mind fully (this is the discretion requirement)
  • Any interference with the discretion of the president in exercising the powers bestowed on him would be reason to set aside such actions as a violation of the Constitution.
  • Ministers cannot assume the function of the president in exercising powers bestowed on him.

Simply put, for anyone to dictate how the president must exercise his powers would be a violation of the Constitution and would amount to a ‘capture’ of the presidency. In the remedial action of the former PP, she took away the discretion of the president in exercising his powers to appoint a commission because she told the president who should chair the Commission, who should decide who is on the Commission, when the commission should be established and when it should give its findings. Essentially, it would seem that the former PP took a decision in terms of s 84 and compelled the president to rubber stamp that decision using remedial action. The powers she dictated to the president are powers only the president can exercise. If state capture is the idea that there are strings being pulled behind the scenes by a certain group of individuals, then the presidency has been ‘captured’ by the office of the PP in as far as this remedial action goes because he isn’t taking the decision personally. This is a form of rubber-stamping and or abdication of powers which cannot be permitted by law.

I agree that there may be compelling reasons why he should not make the decision himself but that falls foul of the Constitution and to pretend that it doesn’t is to repeat the very same thing that the president has been accused of –violating the Constitution. While the PP has the power to make appropriate remedial action, I don’t believe that power extends into undoing the constitutional framework even if for a noble cause. Ultimately of course, it is the courts that will decide what will happen in respect of this remedial action. They could find that the means justifies the end and uphold the remedial action but from a purely principle point of view –the remedial action violates the Constitution and upholding it would be setting a dangerous precedent. Our frustrations with the current president should not blind us to the objective danger remedial actions of this nature have on constitutionalism. Ironically, in dealing with the capture of the state, it would seem another form of capture has taken place and this time of the president himself.

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