Editorial: Lalaphansi, Cabinet

Chief Justice Mogoeng Mogoeng and President Jacob Zuma in friendlier times. (Reuters)

Chief Justice Mogoeng Mogoeng and President Jacob Zuma in friendlier times. (Reuters)

For two weeks South Africa has had a sitting president who is also a criminal suspect – and that’s to take the most generous interpretation of what the high court in Pretoria had to say about the long-dragging spy tapes saga at the end of last month.

For two weeks, President Jacob Zuma has had a renewed cloud of suspicion hanging over his head – suspicion relating to no less a matter than corruption.

For two weeks, there has been uncertainty and doubt about whether Zuma should – and even will be able to – retain his chair, as the country prepares for difficult elections and as schools burn by the score, as the economy hangs on by its fingernails to the cliff edge of junk status, and the governing party turns on itself.

There is a strong case to be made that, in the national interest, the National Prosecuting Authority (NPA) must decide whether it intends to prosecute Zuma or not, and it should make that decision quickly, too. The original charges against Zuma are closely related to the trial of Schabir Shaik – which began in 2001.
That’s 15 years of justice delayed. Surely the NPA is keen to speed up the resolution of the matter?

The Cabinet would disagree. Instead of urging the NPA to make its call, and justify it properly to the nation, the Cabinet on Thursday thought it appropriate to waggle a disapproving finger at the public. 

It serenely and impersonally “noted the judgment” that overturned the 2009 decision to drop the charges against Zuma, it said in a statement about its just-concluded meeting. “Cabinet calls on society to allow the National Prosecuting Authority to independently dispense with its Constitutional obligations in terms of section 179 (5) of the Constitution without any undue pressure from any quarter.”

This would be the Cabinet headed by Accused Number One, in which every member serves at his pleasure; a Cabinet packed with ministers with every interest in ensuring Zuma stays Number One for as long as possible. A successor may well be disinclined to rehire this Cabinet.

It is heartwarming to see the executive quote the Constitution in these kinds of pronouncements. We would like to bring three other aspects of that hallowed document to its attention.

The first is a different part of that self-same section 179 (5), which makes it explicitly clear that the minister of justice has to sign off on prosecution policy.

The second is slightly higher up, section 179 (1), which tells us that the head of the NPA is “appointed by the President”.

The third is in section 96 (2), which makes it very clear that members of the Cabinet may not “expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”.

There is nothing “undue” about pressure on the NPA to make a decision that is already long, long overdue. In fact, society has an obligation to put precisely this kind of pressure on the NPA, to demand that justice be done, that it is seen to be done, and that it not be so delayed as to be denied.

Just about any possible Cabinet pronouncement on the matter at all is constitutionally offensive. The conflict is real, and obvious, and significant. That the Cabinet would seek to interpret the high court judgment – or tell society how it is supposed to act in light of it – is dumbfounding.

Though perhaps not quite so astounding as the fact that, under these circumstances, Zuma still sits at the head of the Cabinet.

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