Thursday, March 31, 2016
South Africa's Constitutional Court on Corruption, Presidential and Legislative Responsibilities, and the Constitution
The controversy at the center of today's unanimous judgment by the South Africa Constitutional Court in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others arises from "improvements" to President Jacob Zuma's private residence in Nkandla done at public expense.
Although the cost of "security features" can be born by the state, other improvements - - - such as the visitors' centre, amphitheater, cattle kraal, chicken run, and swimming pool involved in this case - - - should not be state-funded and should be personally paid by the President.
The constitutional questions in the case are not only about apportioning costs, however, but are about apportioning power in the South Africa government.
The South Africa Constitution establishes the "Public Protector" (sections 181, 182) as an independent entity with the power
a. to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;
b. to report on that conduct; and
c. to take appropriate remedial action.
In this case, the Public Protector, investigated the allegations of "irregular expenditure" and issues a report in 2014 directing the President to make reimbursements and reprimand the Ministers involved in the expenditures; this report was also submitted to the National Assembly.
The President basically refused to comply and the National Assembly "resolved to absolve the President of all liability." Once the matter reached the Constitutional Court's exclusive jurisdiction, President Zuma essentially agreed that he would pay the costs of improvement. Thus, the decision in the case is not surprising.
Nevertheless, the Constitutional Court's decision is an important one. It strongly sides with the Public Protector and states that her remedial action taken against the President is "binding." Additionally, it finds that both the President and the National Assembly acted unconstitutionally:
The failure by the President to comply with the remedial action taken against him, by the Public Protector in her report of 19 March 2014, is inconsistent with section 83(b) of the Constitution read with sections 181(3) and 182(1)(c) of the Constitution and is invalid.
The resolution passed by the National Assembly absolving the President from compliance with the remedial action taken by the Public Protector in terms of section 182(1)(c) of the Constitution is inconsistent with sections 42(3), 55(2)(a) and (b) and 181(3) of the Constitution, is invalid and is set aside.
Jennifer Elgot has a good basic overview of the 52 page decision and background controversy in her piece in The Guardian.
Pierre deVos, Constitutional Law Professor at University of Cape Town has a terrific discussion on his blog Constitutionally Speaking.