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14/12/2017 12:39 SAST | Updated 14/12/2017 12:39 SAST

The Dangers Of A Rogue President

Has there ever been a president anywhere, at any time in history, who has been embroiled in litigation as much as Jacob Gedleyihlekisa Zuma has?

Sumaya Hisham/ Reuters
President Jacob Zuma.

The law envisages that a national director of public prosecutions (NDPP) serves a nonrenewable term of ten years, in order to entrench the independence of that office. Yet our reality has seen that provision undermined and eroded.

In the ten years since the ANC's watershed Polokwane national conference, we have had six NDPPs -- Mokotedi Mpshe, Menzi Simelane, Nomgcobo Jiba, Mxolisi Nxasana, Silas Ramaite and Shaun Abrahams (although Mpshe, Jiba and Ramaite were acting NDPPs).

The courts have now set aside the other three permanent appointments that President Jacob Zuma has made. Zuma's characterisation as a "constitutional delinquent" may be an understatement.

It was the issue of the timing of the laying of charges on 783 counts of fraud, corruption and racketeering against Zuma that led Mpshe to take his ill-fated decision to drop those charges in 2009.

It was alleged that former Scorpions boss Leonard McCarthy and the previous NDPP, Bulelani Ngcuka, had deliberately conspired to lay the charges directly ahead of the Polokwane conference. Mpshe's decision to then drop the charges paved the way for Zuma to be elected president of the republic the following month.

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NPA acting national director Mokotedi Mpshe announces the decision to drop corruption charges against African National Congress leader Jacob Zuma at the NPA's headquarter on April 6, 2009 in Pretoria, South Africa.

As we come to the end of Zuma's term as ANC president at NASREC this weekend, the NPA is in a similar state of disarray, with a decision on whether to reinstate those serious charges against Zuma still pending. Zuma has spent his entire term as president fighting off those charges, and abusing the legal process in doing so.

Finally, at the Supreme Court of Appeal in September this year, his legal team conceded that Mpshe's decision to drop the charges was irrational, concurring with the argument made by the Democratic Alliance since 2009.

Zuma now seeks to make further representations to the NDPP, proposing that the charges not be pursued. The meek Shaun Abrahams has once again heeded "His Master's Voice", and extended the deadline for Zuma to submit these representations until the end of January.

Abrahams had initially given Zuma until the end of November to submit his proposals -- so much for the independence of the NDPP. Zuma's excuse is that his legal advisors have been too preoccupied with other legal matters to be able to meet the initial deadline.

Herman Verwey/ AFP/ Getty Images
South African National Prosecuting Authority director Shaun Abrahams (C) gives a press briefing on October 31, 2016 at the NPA headquarters in Pretoria.

Has there ever been a president anywhere, at any time in history, who has been embroiled in litigation as much as Jacob Gedleyihlekisa Zuma has?

To compound matters, much of this litigation has been aimed at protecting his personal interests using state resources. Zuma has conveniently appointed his personal lawyer (and the business partner of his son Duduzane) as a part-time legal adviser in the Presidency.

The conflation of public responsibilities and personal interests is laid bare by this setup. It would be interesting to see how Mr Hulley separates his billing to Zuma between personal and state affairs.

It is the very notion of such conflicts of interest that lie at the heart of the Gauteng High Court judgment on December 8 setting aside the settlement agreement between Zuma and Nxasana that smoothed the path for the latter's exit as the NDPP.

Wu Hong/ POOL New / Reuters
South African President Jacob Zuma.

The court ruled that the agreement was unlawful, in that it sought to pay Nzasana a "golden handshake" of R17.3-million as an illegal inducement to leave office.

It further ruled that Abraham's appointment as Nxasana's successor be set aside, and that a new NDPP must be appointed, not by Zuma, but by the deputy president. It is this latter aspect that has raised eyebrows –– not least those of Mr Abrahams.

The court's reasoning on this issue, articulated in the judgment delivered by Judge-President Dunstan Mlambo, is that as Zuma faces serious criminal charges, he cannot objectively appoint the very person who must take the decision of whether and how to prosecute him.

In constitutional terms, he is therefore incapable of fulfilling the responsibility of his office as president, and therefore the deputy president must execute that function.

The court clearly joined the dots between constitutional provisions in sections 96 (conflict of interest) and 90 (Incapacity of the president) to reach this conclusion.

Regardless of whom Zuma may appoint as NDPP, there would be a perception that the appointment was tainted, in that the incumbent would owe his appointment to Zuma and yet have to take a decision of whether to prosecute him.

Public confidence in the National Prosecuting Authority (NPA) would be undermined. The evidence of this is clearly demonstrated by the deferential behaviour of Mr Abrahams.

The high court judgment castigated Abrahams for sheepishly echoing Zuma's legal defence strategy in this case, as well as in the "Spy Tapes" matter. Although the courts have not formally been asked to determine Abraham's fitness to hold office, such judicial criticism should be cause for considerable concern.

South Africa deliberately chose to give judges the power to overturn the choices of the "political branches" of government.

The Constitution clearly states that the NPA must execute its responsibilities without fear, favour or prejudice. However, although Abrahams announced shortly after his appointment that the "days of disrespecting the NPA are over", he has, in fact, exacerbated that disrespect.

Those who glibly claim that this judgment constitutes "judicial overreach" –– in that it takes away the power of the poresident to appoint the NDPP –– fail to comprehend the notion of a constitutional democracy. In such a system, the constitution is supreme, and any act or conduct that is inconsistent with its provisions is invalid.

The Constitution of South Africa is premised on a system of checks and balances between the three arms of the state: the executive, legislature and judiciary. Where there is a dispute regarding the interpretation of the Constitution, the courts are the final arbiters.

South Africa deliberately chose to give judges the power to overturn the choices of the "political branches" of government.

Experience has shown that this has enriched rather than diminished our democracy -- it has given meaning to and affirmed the rights set out in the Constitution.

It is where the legislature has failed to hold the government to account, that the courts have been asked to step in and uphold the Constitution. This was clearly demonstrated in the Nkandla case, in which the Constitutional Court ruled that both the president and parliament had failed to fulfil their constitutional obligations.

Judge-President Mlambo, together with Judges Van der Linde and Ranchod, have done no more than uphold the Constitution. The danger to our democracy does not come from the judiciary -- instead, it comes from a rogue president.

** Lawson Naidoo is the executive secretary of Casac; the Council for the Advancement of the South African Constitution