Opinion: Courts and Constitution plug the gap left by lack of political accountability

By Firoz Cachalia

Some years ago I brought back from Siena copies of two famous frescoes painted by Lorenzetti depicting good and bad government. The first shows idyllic scenes of virtuous rulers, happy citizens and a prosperous society; the second shows dystopian scenes of selfish rule, injustice and famine, thus drawing a connection between benign government and the common good.

Modern democracies are as vulnerable to the abuse of power as was medieval Italy. Therefore, one of the main challenges confronting those who design democratic institutions is to inscribe ways to facilitate the exercise of good power and curtail bad power.

How did those who drafted our Constitution respond to this imperative?

In 1992, Judge Albie Sachs, who played a prominent role in the constitution-making process, said in a public lecture: "Constitutions both express and tame power. They are built not on trust but on mistrust, and not just of the other side but of ourselves."

These words have proved to be prophetic. Our experience has shown that liberation fighters and elected leaders are not immune to the blandishments of power and great wealth. The spirit of public service and, regrettably, of self-dealing are qualities evidently bestowed in equal measure across the political and ideological spectrum.

So how does our Constitution aim to curtail bad power and ensure accountability?

It assumes that since the men and women who are elected will not always or necessarily be virtuous Mandelas, institutions and structures of governance based on two fundamental principles of accountability are required: self-government or democratic accountability, and the rule of law.

The first is political accountability and depends on active citizenship. It relies on free and fair elections, well-organised mass political parties, a robust parliament, legislatures and local authorities, elected and accountable ministers, social movements and freedom of the press.

The second principle is the rule of law and constitutionalism, which is institutionalised and enforced through legal systems.

These two principles and instruments of accountability should work in tandem. But as the political modes of achieving accountability have apparently atrophied, we have come increasingly to rely on courts and the public protector to deal with basic matters that ought to have been dealt with by Parliament and the internal processes of the governing party.

When democratic processes fail to ensure accountability, reliance has to be placed on courts and chapter nine institutions.

Judge Dikgang Moseneke has on several occasions publicly lamented the fact that courts have come to shoulder too much of the burden. I agree. But where politicians fail, judges must intervene in defence of democracy, the Constitution and to uphold the rule of law.

How does the second principle of accountability work to curtail forms of abuse of power which unfortunately have come to characterise the democratic state: the abuse of prosecutorial discretion; the abuse of presidential power; and the capture of elements of state power by private interests? The investigation and prosecution of crimes, including what the US calls "high crimes and misdemeanours", by the high and mighty is an awesome but necessary instrument in the coercive armoury of the democratic state. But individuals and society have to be protected from the abuse of these powers.

Robert Jackman, who served as attorney-general and as a judge in the US, explained why in memorable terms: "If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor … in such a case, it is not a question of discovering the commission of a crime and then looking for the man that committed it.

"It is a question of picking the man and then searching the books, or putting investigators to work, to pin some offence on him … the greatest danger of abuse of prosecuting power… it becomes personal and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views…."

Such, without doubt, was the motivation behind the recent botched attempt to charge Finance Minister Pravin Gordhan.

In such a case, our Constitution and the rule of law protect individuals by protecting their rights and by setting justiciable legal standards with which the exercise of prosecutorial discretions must comply. Prosecutors are required by the Constitution to act rationally and lawfully when they make decisions to institute or withdraw a prosecution.

So the rule of law is indeed an unqualified good. This is so, as the left-wing historian EP Thompson once wrote, even though it is concerned only with the abuse of state power, not class power. It should be defended as a fragile political achievement, always threatened in the presence of the temptations of power, the accumulation of personal wealth through politics, and hubris.

The most egregious cases of abuse have concerned those that have combined abusive prosecution with abusive presidential power, aimed at targeting opponents or immunising the malfeasance of the powerful from the reach of the law.

It is in this context that the preliminary findings in the public protector’s State of Capture reports, concerning the exercise of presidential power, should be considered.

In terms of the Constitution, the president appoints members of the Cabinet. The president exercises this power following a competitive election in which the people of the country confer authority to govern. In effect, this power is exercised in a democracy on their behalf.

Legal recourse

Evidence, therefore, that private individuals acting in their own interests attempted to involve themselves in the process of appointment by offering financial quid pro quos is most concerning. This attempt, in effect, to commandeer the country’s Treasury and revenues undoubtedly amounts to an egregious affront not only to constitutional prescripts but to the ANC’s own internal protocols,

If these findings are confirmed, in effect it appears that the president either unlawfully abdicated his constitutional powers or allowed them to be usurped by unelected, unaccountable individuals.

In South Korea, hundreds of thousands of people have come out into the streets recently, in circumstances far less serious, to defend their democracy against plutocratic capture and influence peddling for which one of their president’s closest friends has been charged.

It is deeply worrying that so many in the ANC’s leadership do not seem troubled by the shocking revelations and preliminary findings contained in the state capture report. These findings have been made on the basis of evidence provided by individuals of unimpeachable character, a proven record of loyalty to the ANC’s values and who have no personal interest in making false claims.

The public protector also made recommendations requiring the president to appoint a commission of inquiry headed by a judge selected by the chief justice.

It has been reported that the president’s legal advisers will challenge the constitutionality of the recommendation by invoking the separation of powers.

I doubt this argument will succeed. It is true that the power to appoint commissions of inquiry is conferred by the Constitution on the president. But this is not the old prerogative power of kings and queens.

Since the power is conferred by the Constitution, it is also limited by the Constitution and must be exercised in accordance with its provisions and for a constitutionally mandated purpose. Where the commission of inquiry concerns unconstitutional conduct of the president himself, it is appropriate for the chief justice to select a judge to head the commission, and to determine the terms of reference to ensure objectivity. Although this matter will present novel legal questions on review in SA, it is not the first time they have arisen.

After the burglary at the Democratic Party’s offices at the Watergate office complex in the 1970s, president Richard Nixon attempted to cover up his involvement by refusing to release audio recordings to prosecutors, resulting in the resignation of the attorney-general. Congress enacted the Ethics in Government Act, providing for the appointment of a special prosecutor by the judiciary.

The US Supreme Court upheld the constitutionality of the statute by seven to one on a balancing test against a separation of powers challenge, despite the fact the investigation and prosecution of crime is an exclusive executive function under the US constitution. So is the appointment of the commissions of inquiry under our Constitution.

But the Constitution is not an ostrich, blind to the facts of each case. And it is not to be read by looking only at the language of a single clause.

The many cases of the abuse of power that have come to court are a measure of what has gone wrong in the management of the state under the leadership of the ANC. These are primarily political failures, not merely legal ones. Law begins where politics fails. It is the responsibility of the party of liberation and democratisation to take remedial steps and not to avoid the real issues by resorting to the shameless sophistries and calculated subterfuges we heard in the recent confidence debate in Parliament.

I hope it will do so, because it deserves an honoured place in the history of the freedom struggle in SA, and because I believe a strong and accountable ANC is good for South African politics. But, increasingly, I despair.

This article first appeared in Business Day dated 2 December 2016.