Zuma may be right
President Jacob Zuma may have a solid Constitutional case to challenge former Public Protector Thuli Madonsela’s instruction that he set up a judicial commission of inquiry into state capture.
This is according to Constitutional law expert, Pierre de Vos, who says that, in this case, the powers of the Public Protector as enshrined in the Constitution come in direct conflict with the powers of the president.
Madonsela’s report into allegations of state capture made no findings against those implicated within the report – including Zuma, the Gupta family and several ministers; however, it did contain a directive that the president set up a commission of inquiry, with an order the chief justice Mogoeng Mogoeng be in charge of establishing it.
However, president Zuma has since announced that he will take the report on review, saying that the entire report was unfair and had procedural issues. Pertinently, Zuma told Parliament that the Public Protector had no right to tell him what to do or how to do it.
And Constitutionally speaking, he may be right, de Vos says.
According to de Vos, case history in South Africa supports the president’s view, in that the Constitutional Court has previously ruled that the right to appoint a judicial commission of inquiry belongs solely to the president, and that this power cannot be abdicated, nor dictated.
“The Court held (in the case of the President of the Republic of South Africa and Others v South African Rugby Football Union and Others) that when the Constitution vests the power to appoint commissions of inquiry in the President, the President may not delegate that authority to a third party. The President himself must exercise the power,” de Vos said.
“This precedent suggests that the President will have a plausible case to have the remedial action set aside. It is therefore possible that a court…will find that the Public Protector unlawfully dictated to the President how to exercise his powers under section 84(2)(f) of the Constitution.”
However, this case is slightly more complicated than that, the legal expert noted.
Unprecedented case
While the president is Constitutionally empowered to be the only to be able to set up such commissions – the Public Protector is Constitutionally empowered to impose binding remedial action, even on the president.
De Vos said that there is tension between these two powers, and it could be argued that the president has already abided by an instruction from the Public Protector, dictating how he should use his powers (by reprimanding ministers, following the Nkandla ruling).
“If there are other provisions in the Constitution that allow another constitutional body (like a court or the Public Protector) to instruct the President to appoint a commission of inquiry and how to select the person chairing that commission, this would trump the requirement that the President cannot act under dictation,” he said.
“It is not easy to predict how the Constitutional Court will view the instruction by the Public Protector that the President should appoint a commission of inquiry to further investigate maladministration.
“The situation is rather unique and I cannot imagine that the drafters of the Constitution ever envisaged that it would arise,” de Vos said.
De Vos said that there was a clear prima facie evidence of severe maladministration, and possibly criminal activity – and that there was a conflict of interest in the president having power to establish the commission. However, it would be up to the Constitutional Court to strike a balance.
“Whatever happens, it is going to be fascinating to see where the Constitutional Court come out on this issue.”
Africa Biz says: having failed to make any finding against the President or others involved into 'State Capture' allegations, the former Public Protector Thuli Madonsela has misled the nation with the State of Capture report which makes assumptions and untested allegations against a sitting President.
At best, Madonsela has been incompetent at carrying out her duties while she was the Public Protector. At worst, she is mischievous and driven by malicious intent to discredit President Jacob Zuma as had happened before with the Nkandla report.
And the “leaking” to a news channel of an audiotape of an interview Madonsela had with Zuma during her “state capture” investigation.
Character assassination of President Zuma seems to be behind Madonsela's actions. With the end objective being that the ANC's National Executive Committee will finally turn against President Zuma and recall him.
Africa Biz sees no other reason for Madonsela to invest years of her work as the Public Protector and consistently manufacturing untested allegations against the President of the Republic.
Madonsela must be charged for any unconstitutional conduct on her part.
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