THE BLOG

These Constitutional Changes Can Rescue SA From The Guptas' Grip

The most serious loophole in our Constitution is that it leaves the president largely outside the scope of the rule of law.

19/07/2017 03:57 SAST | Updated 19/07/2017 10:12 SAST
Siphiwe Sibeko/ Reuters
South Africa's Chief Justice Mogoeng Mogoeng (Top, C) looks on with other judges before making a ruling at the Constitutional Court in Johannesburg, South Africa, June 22, 2017.

With the publication of a few research reports and the Gupta Emails, it is now no longer a matter of speculation that a silent bloodless coup occurred in South Africa and we are now under the rule of self-styled emperors from India. Naturally, the nation is divided between those who welcome our new emperors, those who are indifferent to the developments and those who are outraged by the situation.

The majority of the poorly educated citizens are indifferent for several reasons. Firstly, the details of the corrupt activities in which the Guptas are involved are too complicated for the man in the street to follow. Secondly, accusations of corruption are not new. Indeed President Jacob Zuma was accused of corruption even before he became president but he became president anyway. It, therefore, seems natural to expect jealous politicians to smear a good guy with corruption.

The appointment of Jacob Zuma as president had the general effect of desensitising the people to corruption as an evil. When Economic Freedom Fighters Julius Malema was going about campaigning for Zuma, he used to tell the multitudes that "When people say to you: 'But Zuma is corrupt!' you must respond: 'We want Zuma!'" Even his worst enemies would admit that Zuma is charismatic and particularly magnetic to the peasants with whom he shares a background. So it was easy for him to solicit sympathy from the peasants by playing the victim.

The Guptas are generally known as close family friends of the Zuma's. It is therefore reasonable for peasants to conclude that corruption accusations are being used to "persecute" the Guptas in the same manner in which Zuma was and still is being "persecuted". State capture and the corruption scandals which are assumed to be depleting support for the ANC may be doing nothing of the sort in the majority of the voters. In other words, the Gupta empire may be more than a transient phenomenon.

As already mentioned, Those who are opposed to the Gupta empire are supposed to be people who understand what is going on. They include civil society organisations and opposition political parties. Yet these people behave in a manner which beggars belief. The questions that one would have expected the opposition to ask are: (1) What loopholes if any, in the Constitution, brought us where we are today. (2) How do we campaign to close the loopholes (3) What can be done to inform the general population about the seriousness of the situation?

Loophole in the Constitution

It is well known that the most serious loophole in our Constitution is that it leaves the president largely outside the scope of the rule of law. In other words, the Constitution assumes that the president is a saint who can never be involved in criminal activity. Once the president participates in criminal activity he becomes conflicted in many of his core duties but, surprisingly, there is no constitutional provision to handle such conflicts of interest as the setting up of commissions of inquiry and the appointment of key personnel in the criminal justice system.

Once a prima facie case has been established the president should be deemed incapacitated and therefore the deputy president should take over his duties in terms of the constitutional clause covering incapacity.

Campaign to amend constitution

The obvious amendment which is urgently required in the constitution is to include a clause which stipulates that: Once a prima facie case of criminal behaviour by the president has been established, he becomes conflicted in many of his interactions with the criminal justice system and therefore:

  • The president should step down, at least temporarily, pending the conclusion of the matter by the constitutional court.
  • The president should be deemed incapacitated and therefore the deputy president should take over his duties in terms of the constitutional clause covering incapacity.
  • All subsequent court proceedings should be automatically treated by the courts as urgent to ensure speedy resolution of the crisis

This is the sort of constitutional change which can rescue the country from the grip of the Guptas by empowering the people to promptly remove a suspected criminal from the presidency. Clearly, those who welcome the Guptas as our emperors are unlikely to voluntarily accept such constitutional changes. It is, therefore, the responsibility of those who oppose the Gupta empire to campaign for these changes. The anti empire brigade is completely silent about these matters which is why I said their response beggars belief. That offending omission in the Constitution is the seed for a future dictatorship.

Voter education

When constitutional democracy was introduced in 1994 it was never explained to the people. Today our constitution is under attack by those who benefit from the Gupta empire and, I am afraid, not many ordinary people will defend it. On the contrary people are being taught to be suspicious of the constitution. An impression is being given that there are sell out clauses, such as the property rights clause, which are responsible for the poverty of the people.

Dictatorships are insidious and things change slowly to reach a point of no return. One day the opposition will look back and regret that they did not do nearly enough to oppose the anti constitution propaganda which is slowly taking root. In the medium term: the opposition will regret after 2019 that they assumed the people would punish the corrupt ANC and frittered away opportunities to educate the people. I do not see any serious attempts to go out to the people to explain the current crisis.