Jacob Zuma Violated the Constitution. Now What?

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?

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Combating Corruption via Constitutional Courts: South Africa as a Model?

Can a constitutional court function as an effective anticorruption advocate? South Africa’s Constitutional Court (the “ConCourt”) has taken on exactly such a role. Perhaps the high water mark of the ConCourt’s efforts to combat corruption came in Glenister v. President of South Africa, a 2011 case in which the court found the Constitution contained an implied governmental obligation to establish an effective anticorruption unit. The ConCourt’s track record on anticorruption is admittedly not perfect. The legislature has yet to fully give effect to Glenister, and the declining power of parliamentary moderates may impede full implementation of the decision. Perhaps more troubling, in 2013, two ConCourt justices refused to testify before a tribunal investigating claims that, on behalf of President Jacob Zuma, a lower court judge allegedly requested that the two justices issue Zuma-friendly rulings. Nonetheless, in addition to its watershed decision in Glenister, the ConCourt has found against Zuma in several cases, despite six of its eleven justices being appointed by him. When combined with its continued insistence that the anticorruption unit must be truly indenpedent, the ConCourt’s past successes in changing government behavior suggest that it may yet succeed in forcing parliament to act on Glenister.

Overall, then, the story of the South African ConCourt’s role in fighting corruption appears to be an optimistic one. The ConCourt’s example seems to demonstrate that not only can a constitutional court be an anticorruption tool, it can be such a tool even in an incredibly unfriendly political environment. Indeed, the South African ConCourt’s success may suggest that in systemically corrupt environments, the courts–and the Constitutional (or Supreme) Court in particular–may be the best hope for reformers seeking bulwark against corruption and an instrument of change.

On closer examination, however, it appears that the South African ConCourt’s success may not be easy to replicate elsewhere. The South African ConCourt has managed to attack corruption, despite the political and institutional odds stacked against it, due to a set of unusual, perhaps unique, circumstances.

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