It’s hard to imagine a court decision more dramatic than the South African Constitutional Court’s March 31 ruling on President Jacob Zuma’s misuse of public funds at his private home in Nkandla. In powerful language that sometimes verged on purple prose, the ConCourt announced that the Public Protector, the constitutionally-created institution charged with investigating improper government conduct, is the “embodiment of a biblical David, … who fights the most powerful and very well-resourced Goliath[:] impropriety and corruption by government officials.” In order for the Public Protector to effectively serve that function, the ConCourt decided, the remedial action she recommends must be binding. By failing to follow her prescribed remedial action, which included paying back a “reasonable percentage” of the misused funds, Zuma had failed in his “obligation to uphold, defend and respect the Constitution.”
However, the scene in the National Assembly, South Africa’s lower (and more important) house of Parliament, on May 4 was equally dramatic—though much less dignified. With President Zuma scheduled to make his first appearance before the National Assembly since the Nkandla judgment–and with the reopening of a different judgment by a lower court that could lead to the investigation into another corruption-related incident–the opposition Economic Freedom Fighters (EFF) party demanded that he not be allowed to speak since he was clearly “illegitimate.” EFF members and the Speaker of the National Assembly got into a “screaming match,” which eventually escalated into a fight. As Parliamentary protection service officers forcibly removed the EFF from the legislature, the EFF members continued to shout insults and declare that it was the President, not they, that should be forced to leave. The day also involved the ruling African National Congress (ANC), Zuma’s party, ruling that any quotations from the Nkandla judgment during the legislative session were out of order, and the Democratic Alliance (DA), the primary opposition party, mocking Zuma and calling him the “looter in chief.” Putting a punctuation mark on this fracas was a five-day ban on the EFF’s National Assembly representatives and a decision by the remaining opposition parties to boycott the National Assembly the following day.
The ConCourt’s ruling, though, is far more than just a prompt for an exciting 24 hours in the National Assembly. Looking further down the road, what does the Nkandla judgment mean for South Africa?
- First, the Nkandla judgment does not necessarily mean Zuma will be impeached. In fact, the DA has already tried to do that—and failed. Just days after the Nkandla judgment, a motion to remove Zuma, which needed 160 votes to pass, lost by a vote of 243-133. The vote may have been political–the ANC’s sheer numerical advantage effectively doomed it–but that doesn’t make it illegal: though the Constitution provides that the National Assembly may remove the president if he commits a “serious violation of the Constitution,” it is up to the National Assembly to decide whether to do so. The overwhelming size of the impeachment motion’s defeat should disabuse us of any notion that the Nkandla scandal spells Zuma’s political demise. Zuma has time and again proved his ability to survive scandals, and (as I have previously noted), the ANC’s support of Zuma as the Nkandla drama played out makes it difficult for the party to disavow him now, even if it wanted to.
- Second, notwithstanding the points above, the recent ConCourt ruling does provide an additional tool which opposition parties can use to criticize the president, and puts the ANC in a tough spot. The fact that the ANC is facing stronger-than-ever challenges in local elections (and concern that this effect could scale up) may mean members start to look for ways to contain the damage, claiming to still support Zuma while trying to distance themselves and ride out the next few and final years of his role as ANC leader, which wraps up in 2017, and of his presidency, which comes to an end in 2019.
- Third, beyond the immediate political fallout for Zuma and the ANC, the ConCourt’s decision has broader institutional significance. The Public Protector’s powers are now established as binding, which strengthens the office considerably. As the ConCourt explained, in order for the Public Protector to be a “true crusader and champion of anti˗corruption and clean governance,” the Public Protector needed to “have the resources and capacities necessary to effectively execute her mandate so that she can indeed strengthen our constitutional democracy…. If compliance with remedial action taken were optional, then very few culprits, if any at all, would allow it to have any effect.” This sort of judicial endorsement means that as the Public Protector embarks upon future investigations into the Guptas (the subject of a previous post) and other alleged instances of corruption, she will be more fully able to censure guilty parties, which, one hopes, will also have deterrent effects. It also makes finding a good replacement for the current Public Protector, whose term comes to an end in October, all the more important.
- Finally, who wrote the judgment is important. The 9-0 decision was penned by Chief Justice Mogoeng Mogoeng. It might not seem all that surprising that a chief justice would be the one to write such an important decision, but it’s hardly what anyone would have expected several years ago, when Mogoeng’s unexpectedly quick rise through the judiciary was critiqued as an “attempt at executive corrosion of the independence of the judiciary.” As a consequence of the firm, sweeping language of the Nkandla judgment, Mogoeng is now being heralded as a “national paragon of jurisprudence,” whose willingness to go against the preferences of the man who appointed him deserves comparisons to former U.S. Chief Justice Earl Warren. The shift in the perception of Mogoeng didn’t happen overnight, but the tone he used in the Nkandla judgment is certainly a welcome sign, since other cases related to Zuma’s corruption could very well be in front of the ConCourt soon. Observers should be cautious about adopting Mogoeng as an anticorruption champion: He dissented in Glenister, the case that struck down Zuma’s attempt to replace the agency responsible for prosecuting corruption, the Scorpions, with a much less independent institution. Still, if this decision is reflective of how Mogoeng, and the ConCourt more broadly, will handle anticorruption issues going forward, it’s a positive sign that the judiciary could continue to be one of South Africa’s institutions most capable of pushing back against graft.
It may have taken several years to get to this point, but South Africans really did get a decision worth cheering. One court judgment can hardly resolve all the ways cronyism and corruption have metastasized throughout the South African government under Jacob Zuma, but the willingness of the Public Protector and the Constitutional Court to challenge him stands as proof that not all institutions have been hopelessly compromised. Now, as the ANC moves closer to its post-Zuma era, the political party must decide whether the benefits of the Zuma tenure have been worth the predictable costs, and choose its leadership for the future accordingly.