Judgment Before the Fall
South African President Jacob Zuma suffered a stinging rebuke yesterday from the country’s highest court. In a sweeping and unanimous 53-page judgment unprecedented in the new democracy, the ruling amounted to a stunning repudiation of South Africa’s fourth chief executive since the end of apartheid and Nelson Mandela’s election as president in 1994. “Public office-bearers ignore their constitutional obligations at their peril,” Chief Justice Mogoeng Mogoeng said in remarks broadcast live on radio and television. The event amounted to a national teach-in on the system of checks and balances built into the 1994 Constitution. “Constitutionalism, accountability, and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck,” Mogoeng said.
In a packed, rapt chamber of the Constitutional Court, the chief justice also faulted the National Assembly for having failed to curb executive overreach, even as he noted limits on the power of the judiciary—including his own apex court—to intervene in the affairs of the other co-equal branches. By the time Mogoeng was done, however, there wasn’t any question about whose neck had been forcefully placed on the block. President Zuma “failed to uphold, defend and respect the Constitution as the supreme law of the land,” the chief justice announced, flanked by somber-looking colleagues. When the justices stood, bowed, and retreated, there was tentative applause.
The case against Zuma, filed by opposition parties last year, centered on the president’s response to a report delivered in 2014 from the Public Protector, Thuli Madonsela. Established under the post-apartheid Constitution as an independent, freewheeling public ombudsperson, her office had investigated charges that the president was unduly enriched though publicly funded construction at his homestead in Nkandla, in rural KwaZulu-Natal province. Out of a massive budget of 246 million rand ($16.7 million at current exchange rates), spent supposedly for security upgrades, the public protector pinpointed five especially suspicious expenditures, including construction of a swimming pool, visitor’s center, cattle enclosure, chicken run, and amphitheater. When the chief justice reviewed this part of the case, he looked a little startled each time he said “swimming pool” and “chicken run.” The public protector had dubbed these as unjustifiable uses of public money and ordered the president to repay that portion of the work on his private residence.
Instead of complying with her order, however, the president commissioned a separate investigation by his own police minister, who, not surprisingly, absolved him of any impropriety or duty to pay back the funds. The governing African National Congress then used its majority in the national legislature to stymie any meaningful further investigation, improperly neutralizing the effect of a legal order, the Constitutional Court ruled. The public protector was also subjected to a highly personal vilification campaign by government and party officials and investigations by elite police agencies for doing what the court found had been her constitutionally obligated duty.
Chief Justice Mogoeng also scored National Assembly officials for failing in their constitutional duty to help safeguard the independence of the public protector. He pointed out that the office had been established as a key bulwark in the fight against “corruption, unlawful enrichment, prejudice and impropriety in state affairs and for the betterment of good governance.” If the president and legislature disagreed with Public Protector Madonsela, the chief justice pointed out, they could have challenged her in court, but they could not simply ignore her orders, as if President Zuma were above the law.