Tuesday 11 May 2021
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Nkandla: Lessons for Namibia

Judge Chris Greenland

Judge Chris Greenland

By now just about everyone understands that the     Constitutional Court of South Africa (“ConCourt”) ruled that President Jacob Zuma was always bound by the Public Protector’s Report, including her directive that he repay a percentage of the costs regarding improvements at his Nkandla homestead, such as the infamous “fire pool”.
It is important to understand that South Africa, like Namibia, is what is known as a “constitutional democracy” that includes two very important features which are fundamental and non-negotiable – a) the Rule of Law; and b) Separation of Powers.
As regards the Rule of Law all are equal under the law, even the President. Everyone is bound by the law, even the President. Politically some may be more equal than others but not under the law. That is why the     Superior Courts had already ruled that the SA Government was in breach of the Constitution and the law in allowing Omar Al-Bashir to escape.
“[75] The rule of law requires that no power be exercised unless it is sanctioned by law and no decision or step sanctioned by law may be ignored based purely on a contrary view we hold. It is not open to any of us to pick and choose which of the otherwise effectual consequences of the exercise of constitutional or statutory power will be disregarded and which given heed to. Our foundational value of the rule of law demands of us, as a law-abiding people, to obey decisions made by those clothed with the legal authority to make them or else approach courts of law to set them aside, so we may validly escape their binding force.”
Simply put, even the President is bound by the law of the land whatever competing political imperatives there might be.
As regards what is known as the doctrine of Separation of Powers, the principal organs of State, under the Constitution, are the Executive (President and Cabinet); Parliament (Members of Parliament) and the Judiciary (the Courts).
In this model the people elect members of Parliament who pass laws and decisions, giving effect to the will of the people, and the Executive executes these laws and decisions. Parliament holds the Executive to account. By this is meant that it is Parliament that must ensure that the President and Cabinet uphold the Constitution and executes the will of Parliament.
That is why all government     departments fall under the Executive, i.e., so that the Executive has capacity to execute the will of Parliament.
Because ALL laws, decisions, acts and omissions have to be in compliance with the Constitution the Judiciary is sometimes called upon to check if any law, decision, act or omission is in compliance.  If there is a breach the Judiciary will strike down the law, decision, act or omission in question.
In this way it is the Constitution that protects everybody … NOT     politicians. Even the lowliest citizen is able to use the Courts to ensure that he/she is not victimized. The Courts can act as referee in this way because they are independent and no Judge can be summarily removed by the Executive.
The Public Protectors Office (“PP”) is one of institutions known as Chapter 9 institutions because they are also independent and primarily protective of human rights in support of the role the Judiciary plays.
So, as clearly explained by the Chief Justice (“CJ”) in the unanimous decision of ConCourt, the Public Protector is there to protect citizens, especially the very poor, from Executive abuse and excess. Wastage of scarce resources is such abuse.
This is what Mogoeng CJ had to say about the Public Protector –
“[52] The Public Protector is thus one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in State affairs and for the betterment of good governance. The tentacles of poverty run far, wide and deep in our nation. Litigation is prohibitively expensive and therefore not an easily exercisable constitutional option for an average citizen. For this reason, the fathers and mothers of our Constitution conceived of a way to give even to the poor and marginalised a voice, and teeth that would bite corruption and abuse excruciatingly. And that is the Public Protector. She is the embodiment of a biblical David, that the public is, who fights the most powerful and very well-resourced Goliath, that impropriety and corruption by government officials are. The Public Protector is one of the true crusaders and champions of anti-corruption and clean governance.”
The Public Protector found abuse as regards Nkandla and directed that the President repay a percentage of the excessive expenditure. He declined. What he did instead was to get the ANC dominated Parliament to “whitewash” him of any wrongdoing regarding Nkandla and nullify the PP’s Report.
It is important to understand the President and the ANC dominated Parliament were entitled to question the accuracy and validity of the PP’s Report. This they did … and did so in very bad faith … as proved by the fact that they used the farcical, ludicrous, laughable Minister Nhleko “fire pool” report to absolve the President.
Critical was the fact, and law, that if the Executive and Parliament disagreed with the PP’s Report they were obliged to approach the Judiciary and have the matter reviewed. It should be noted that this is very basic law of interpretation that would be known by a 2nd year law student. It is simply inconceivable that the President and Parliament would not have been advised accordingly and yet the President now stands up and brazenly claims that for nearly all of the two years be defied the PP’s Report he acted in good faith and in ignorance of law. They compound this fatuous claim by citing a Cape High Court Judgement, Democratic Alliance v South African Broadcasting Corporation Limited and Others (12497/2014) [2014] ZAWCHC 161; 2015 (1) SA 551 (WCC) (24 October 2014), in which the Court held no more than that the PP’s Report can be can be challenged on a “rationality” basis … NOT that it can just be IGNORED and/or SUBSTITUTED.
Mogoeng CJ central finding was –
“… the President’s failure to comply with the remedial action taken against him by the Public Protector is inconsistent with his obligations to uphold, defend and the Constitution as the supreme law of the Republic; to comply with the remedial action taken by the Public Protector; and the duty to assist and protect the office of the Public Protector to ensure its independence, impartiality, dignity and effectiveness.
[104] Similarly, the failure by the National Assembly to hold the President accountable by ensuring that he complies with the remedial action taken against him, is inconsistent with its obligations to scrutinise and oversee executive action and to maintain oversight of the exercise of executive powers by the President. And in particular, to give urgent attention to or intervene by facilitating his compliance with the remedial action.”
It is appalling that the President, Executive and the ANC dominated Parliament sought to repudiate the Constitution in such an overtly brazen way. It is common sense that if the Constitution gives the PP the power to issue you with a yellow card it cannot be open to you to decide if it is valid or not.
[74] This is so, because our     constitutional order hinges also on the rule of law. No decision grounded on the Constitution or law may be disregarded without recourse to a court of law. To do otherwise would “amount to a licence to self-help”..
“But, there was everything wrong with the National Assembly stepping into the shoes of the Public Protector, by passing a resolution that purported effectively to nullify the findings made and remedial action taken by the Public Protector and replacing them with its own findings and     “remedial action”. This, the rule of law is dead against. It is another way of taking the law into one’s hands and thus constitutes self-help.”
There can be no doubt whatsoever that the President, the Executive and the ANC dominated Parliament went into “self-help” mode with open eyes. They could not have thought, imagined or supposed that what they did was right because that means that the public is left with no protection against executive abuse/excess and the office of the Public Protector becomes meaningless. That level of incompetence is     unimaginable … but that is what the general public is being asked to accept in the “apology” that has been proffered by the President.
It is important to note that the President has not apologised for gross breach of the Constitution and failure to uphold the Office of the Public Protector. What he said was that the matter caused “much comment and confusion” and it is this that he was apologising for.
The matter is put into further perspective here-
“That the Constitution requires the Public Protector to be effective and identifies the need for her to be assisted and protected, to create a climate conducive to independence, impartiality, dignity and effectiveness, shows just how potentially intrusive her investigative powers are and how deep the remedial powers are expected to cut.
[67] The obligation to assist and protect the Public Protector so as to ensure her dignity and effectiveness is relevant to the enforcement of her remedial action. The Public Protector would arguably have no dignity and be ineffective if her directives could be ignored willy-nilly”.
There has been no apology for the fact that the PP received no protection whatsoever. In fact, the President, the Executive and Parliament acquiesced in, connived and colluded at a situation where Advocate Thuli Madonsela was subjected to attack, ridicule, vilification and abuse to the extent of being classified as a “CIA spy”.
Namibia is a constitutional     democracy. It too has the Rule of Law and Separation of Powers. The Omar Al-Bashir case and this Nkandla case posit as salutary lessons that human rights repose with the     Constitution and NOT with politicians.
It is also critical to understand that there is always a to threat     human rights because of what is known as the “tyranny of the majority”. Here we witness leaders who are relying on the majority support that their Party enjoys to brazenly run rough shod over the Constitution.
Understand that, when this     happens, it leaves no one protected because tomorrow your rights will/may also be trampled upon in terms of political expediency.

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