From the court room to politics – shaping habits

In the court room 
It is worth repeating some of the Constitutional Court’s judgement in the Nkandla matter. In paragraph 83 it stated: “The President thus failed to uphold, defend and respect the Constitution as the supreme law of the land.”

A similar finding was made in respect of Parliament: it acted inconsistently with the Constitution when it passed a motion that absolved the President from compliance with the Public Protector’s findings. The Court declared Parliament’s motion invalid and set it aside. It is clearly not enough to have a parliamentary majority; that majority must also act in line with the Constitution.

Chief Justice Mogoeng Mogoeng, who wrote the judgement with which all other ten judges concurred, did not mince his words: “… public office-bearers ignore their constitutional obligations at their peril.” He referred to sec 1(c) and (d) of the Constitution which contain the principles accountability, the rule of law and the supremacy of the Constitution (my emphasis). Not just words, but words with meaning and consequences.

South Africans were justifiably proud and excited by this strong and unambiguous statement of the Constitutional Court and the clear victory for constitutionality. Some people were confused and disappointed that the Court did not order impeachment – it is not within the Court’s power to order that. Constitutionality also includes a separation of powers, and that power belongs to parliament, not the Court. The Constitution is clear on that, specifically stating that “The National Assembly… may remove the President…” May, not must or should.

The Court has played its part; it is now up to Parliament. In practice therefore, it is up to the ANC and broader political processes. For that reason the focus and attention has moved from the Court room to politics.

Over to politics 
The President, the ANC and the Speaker of Parliament all hunkered down and are trying to sit the issue out. However, at the time of writing it does not look as if South Africans are accepting it. There is a lively political contestation going on – which is precisely how it should be. So how will all this play out?

One can summarise the current position in three statements:

• Mr Zuma’s position will ultimately be decided by the ANC. 
• The ANC, however, is divided about how it should react. Inside the ANC structures 5 ANC provinces have so far declared their support for him; three must still discuss the issue; and one (Gauteng) has ‘asked for him to do the right thing’ – step down. Three leagues – Women’s, Youth and Military Veterans – have also expressed support for him. This looks overwhelming and may well be enough for him to conclude his term. But this count is also an over-statement of support. Outside the formal structures many ANC supporters are calling for him to step down (inside the structures as well, as the Gauteng decision indicate).
• Other issues will now increasingly impact on the way the ANC is moving. There is the ANC Secretary-General’s investigation into ‘state capture’; the Pretoria High Court must rule on the correctness of the withdrawal of charges against Mr Zuma in 2009; Moody’s will announce their rating decision towards June; Speaker Mbete has surprisingly announced (sort of) her intention to stand as president of the ANC if asked… these and other issues will have a bearing on the on-going contestation inside the ANC.

From Nenegate on 9 December 2015 to the Constitutional Court’s judgement on 31 March 2016 – about 4 months – Mr Zuma’s political position has weakened considerably. Then he felt comfortable to fire the minister of finance, now it does not look as if he could fire the deputy-minister of finance. One must not conclude that Mr Zuma will depart, but things have become looser and they can take unexpected turns. As Harold Wilson used to say ‘a week in politics is a long time’.

In the mean time… 
In the meantime pressing economic issues are piling up in the background. Both the ratings agency S&P and the World Bank have cautioned that politics in SA are undermining focus and leadership on growth.

Certainly issues like a new board for SAA and sorting out the dispute between Finance Minister Gordhan and SARS Commissioner Tom Moyane are not coming to conclusion. Progress on these matters is critical to improve confidence. The political stagnation is not good for investment, period.

On the other hand, Minister Gordhan’s ongoing consultations with business leaders seem to be taking shape around concrete actions; in particular an enterprise development fund to support small business formation and capital projects in which business could invest. Apparently people like Brian Joffe, Adrian Gore and Sim Tshabalala are involved, which must improve the odds of success. So underneath the political noise serious minds are looking at serious issues… like watching two very different movies at the same time.

Some reflections

• When Mr Mogoeng was appointed Chief Justice he was widely seen by some as a Zuma lackey who would do the President’s bidding. There was no evidence of that in the Constitutional Court judgement he wrote. How often people are appointed and then they turn out to be independent and just do their job. 
• Institutions are tested under pressure – and they have certainly withstood the pressure. The Constitutional Court judgement with the unanimity of the eleven judges; the reinforcement of the Public Protector’s position; the earlier Appeal Court decision on the Bashir case; the strength with which society (including unlikely actors like the SACP and Cosatu) has rallied against the Van Rooyen appointment at Treasury. Certainly these institutions have come through with flying colours. Those who wish to write them off may want to reconsider.
• The whole Nkandla saga was brought into the open by newspapers and the media. It was the late Mandy Rossouw who travelled to the Nkandla district to ask people how they feel about having a neighbour as president, when she saw the building activity. If it was not for the media’s consistent digging, all of this may not have come out. Likewise, it is the media that has exposed huge parts of ‘state capture’ by you-know-who. 
• All of the above is testimony of the extent to which SA is an open society; and the ability of an open society to change course. It is not that open societies do not make mistakes, they do. The question is whether they can correct the course.

So what?

• In the political hunkering down that followed the Constitutional Court ruling it is easy to forget that the rule of law and supremacy of the Constitution are clear winners in the Nkandla saga. None of that has been negated by the political noise – the legal principles stand and they will be applied again. 
• The Public Protector is a clear winner and emerges from the saga stronger and more protected. The institution has been strengthened immeasurably. 
• Mr Zuma’s political position has weakened. He may complete his term or he may not, but he is now certainly more exposed to adverse developments or new scandals. 
• Political stagnation is not good for economics; but the work being done between the Minister of Finance and business leaders may help to break some of the stagnation. 
• The political philosopher Alexis de Tocqueville described political institutions as ‘habits of the heart’ – the way we feel we are bound to behave. In an open society those habits are formed through contestation and active citizenship. With the Court ruling and subsequent lively political contestation we are witnessing those habits being shaped. It is a fascinating, if somewhat nerve wracking, process.