How much more abuse can the constitution take from Zuma?

31 August 2014 - 02:51 By unknown
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IT is not clear what reading matter President Jacob Zuma's Kremlin hosts provided for him at the dacha where he rested during this week's visit to Russia. (The timing of the trip is doubtless a coincidence, but he certainly chose a useful moment to escape local difficulties ranging from an unbowed public protector and an uber-aggressive Economic Freedom Fighters leader to the smoking gun perhaps lurking in the spy tapes.)

IT is not clear what reading matter President Jacob Zuma's Kremlin hosts provided for him at the dacha where he rested during this week's visit to Russia. (The timing of the trip is doubtless a coincidence, but he certainly chose a useful moment to escape local difficulties ranging from an unbowed public protector and an uber-aggressive Economic Freedom Fighters leader to the smoking gun perhaps lurking in the spy tapes.)

But it is certain that Zuma was not given sight of the article that journalist Philip Stephens published recently in the Financial Times.

He had also gone to Moscow, but neither for a rest nor to nudge along unnecessary nuclear power station contracts. Stephens went there to try to divine why President Vladimir Putin was behaving as he has been these past months: annexing Crimea, arming rebels in Eastern Ukraine, banning McDonald's hamburgers and eclipsing even South Africa's sclerotic GDP growth, which in Russia is likely to spiral down to zero percent this year.

Stephens quoted a local who explained Putin's hostility to his neighbours and the West as a case of "when you don't know what to do, you do what you know".

Putin is not the last or first leader who, confronted by the unknown, seeks refuge in the familiar.

The South African Presidency seems to have taken this recipe and applied anabolic steroids to the formula.

Perhaps not for nothing was Zuma's pre-presidential legal approach when escaping the coils of looming corruption charges dubbed the "Stalingrad strategy".

But combat by exhaustion, delay and destruction is one thing when you are fingered for the criminal dock, and quite another when you are the president charged with upholding and enforcing the constitution.

President Richard Nixon tried much of the same thing during the Watergate crisis.

He was undone by his own voice on a tape and not, admittedly, by the voices of others, as in the case of the local spy tapes, which might or might not provide a rational basis for the decision not to prosecute the president on corruption charges, clearing his path to the presidency.

But before any of that unspools after the DA's victory in the Supreme Court of Appeal on Thursday, which could disprove the National Prosecuting Authority's claim of a conspiracy against Zuma - the springboard (or excuse, depending on your viewpoint) for dropping the corruption charges there is the matter of Nkandla, parliament and the public protector.

Here matters are both more and less straightforward. It's a matter of what she said and he didn't say or do.

Thuli Madonsela, in an explosive letter last weekend (the origins of its appearance on the front pages remain contested), stated plainly that the president's response to her report on Nkandla amounted, in essence, to a non-response and an evasion of its central findings.

Weary readers might recall that Zuma's response was to instruct a subordinate, the minister of police, to determine his culpability for any of the costs for improvements to his private residence.

What she didn't say, but which the author Upton Sinclair once famously did, is that "it is difficult to get a man to understand something when his salary depends on his not understanding it".

It's an interesting stratagem to get a minister to decide whether the person on whom his continuance in high office depends ought to pay back multiple amounts of money.

Madonsela went further; she suggested that not only might this be a bad idea, but in fact it was "illegal" since it conferred on the minister powers that he did not have and that usurped the powers of the court, the only institution that could review her findings. Second-guessing by a cabinet minister is not just poor form, but is also, on her interpretation, unconstitutional.

Naturally the ANC launched a "fight back", saying her response to the president's lack of response was "undermining parliament", pursuing a "personal matter" and "playing to the gallery", among other sins. Madonsela, in response, said this was a direct assault on her office and independence in violation of the constitution, which proscribes any interference in the functioning of her office.

At this stage in the proceedings, including the EFF's interruption of proceedings in parliament two Thursdays ago, we might well ask the essential question: How much more damage can the constitutional instruments designed to combat corruption and rein in the abuse of office withstand, especially from those charged with protecting them?

Long ago, and not in Russia but in its nemesis, the US, a famous, independent voice of warning sounded in a dissenting judgment against the encroachment of the state pursuing improper ends.

In 1928, Justice Louis Brandeis wrote: "Our government ... teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy."

Wise and prophetic words in the US then and for South Africa right now.

Leon is a former DA leader and South African ambassador to Argentina

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