Is the State of Capture Report a damp squib?

Did the former Public Protector, Thuli Madonsela, miscalculate when she crafted her masterful State of Capture report?

Released by order of court on November 2 at 5pm, the report contained explosive allegations of the nature and extent of malfeasance by a wide array of actors in our political milieu, but disappointingly, it was not the smoking gun in the hand of Jacob Zuma, which so many ardently hoped it would be. (As an aside, it is perhaps for this reason that Mr Zuma unexpectedly decided to withdraw his application to interdict the release of the report in the closing stages of the two-day hearing on the matter. The report was, after all, in the hands, at least overnight, of National Assembly Speaker Baleka Mbete, who isn’t exactly known for her impartiality.)

Ms Madonsela was painstaking in her determination to prevent Jacob Zuma from side-lining her recommendations, so much so, that she took the controversial step of transgressing the separation of powers doctrine.

Relying on Jacob Zuma’s assertion in a recent court matter, EFF v Speaker of Parliament, that “I could not have carried out the evaluation myself lest I be accused of being judge and jury in my own case,” Ms Madonsela left him little wiggle room in executing his powers under Section 84(2)(f) of the Constitution, to appoint commissions of inquiry.

She limits his action to appointing a jurist, nominated by Chief Justice Mogoeng Mogoeng, to head the commission, provide it with wide powers, and thereafter to have nothing to do with it, save to receive its final report and give indication to Parliament of his intention regarding its implementation, within 14 days.

That Jacob Zuma in court papers in the interdict hearing, categorised the report as “unlawful,” suggests just how likely he is to implement Ms Madonsela’s recommendations, and with the 30-day deadline rapidly approaching – December 2 – we will shortly know his intentions.

He has just two possible courses of action, as a result of the Constitutional Court’s ruling in the landmark Nkandla Judgment (Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others) in March.

He can take the State of Capture report on judicial review, or he can implement Ms Madonsela’s recommendations. He may well choose to simply do nothing, but that won’t work. Come December 3, with no action by Mr Zuma, Freedom Under Law, The Helen Suzman Foundation, the EFF, the DA, and a few others will file papers in the North Gauteng High Court seeking an order compelling him to act, and if history in this matter is any predictor, that order will be made.

He is much more likely to take the report on judicial review, and specifically challenge it on the grounds that it transgresses the separation of powers doctrine, which of course it does. Question is, how is the court likely to rule?

The separation of powers doctrine is one of the cornerstones of our democratic order. It is intended to ensure that the three arms of government – legislature, judiciary and executive – are able to act in accordance with their respective constitutional mandates, without usurping power from one another.

If, however, any arm of government acts in a manner which contravenes the Constitution, or in a manner that is not in the public interest, what then? If the separation of powers were absolute, it would be impossible to hold any arm of government to account. In short, there would be no checks and balances.

Thankfully, the multi-party negotiating process in the early 1990s determined in Constitutional Principle IV that: “There shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.” In certifying the Constitution in 1996, the Constitutional Court indeed found that the Constitution did comply with this principle. This means no arm of government has unfettered power to do as it pleases, but this is where it gets interesting.

If the three arms of government are equivalent in terms of their powers to act and to hold each other to account, which is the final arbiter of what may or may not be done?

Thankfully, our constitutional fathers anticipated such a contradiction, and overcame it by the simple expedient of making the judiciary the apex arm of government, cognizant that our jurists would observe the doctrine of separation powers, but if circumstances dictated, would sanction a transgression, in pursuit of the rule of law, as manifested in recent court rulings, to whit Nkandla, the Al-Bashir matter, EFF v Speaker of the National Assembly, and many more.

That most such matters wind their way from High Court, to the Appeal Court, to the Constitutional Court, and always at significant expense, is the product of a judicial system designed to ensure oversight within its own hierarchy, an essential dimension of a system of governance in which one arm of government
is mandated to hold the other two accountable to the rule of law.

Forcing Jacob Zuma to implement a judicial commission of inquiry, and allowing him no part in its make up, powers, mandate or terms of reference, is a transgression of the separation of powers doctrine.

However, since Jacob Zuma is directly, personally, damningly implicated in the allegations of state capture, this may well constitute circumstances which will persuade the court to sanction this transgression, and compel Jacob Zuma to act in accordance with Ms Madonsela’s recommendations.

We can but hope.