The supportive howling and catcalls from the ANC back benches during the SONA debate could be described as an act of compurgation for a president who is so compromised and conflicted that he has been credibly dubbed a “constitutional delinquent” by the opposition. Compurgation has medieval roots and its revival in modern politics is not necessarily a sign of progress. By CHRIS SHONE.
When referring to the executive branch of government – the President, Deputy President, ministers (and their deputies) – has the time not finally arrived to drop reference to them, collectively, as “the Cabinet”? Other than the President, who is elected by the National Assembly, the remainder of the Cabinet are all selected and appointed by the President; Zuma is a cabinet maker.
The President is not Mister Geppetto, even though some may suggest that certain of his appointees, in cabinet and otherwise, may be his puppets. Cabinet members are not necessarily dull pieces of wood to be carved so as to create an ideal that may simply do the bidding of their master or moved around on a whim or even tossed out. Or are they? What would Pinocchio think?
President Jacob Zuma appears to be a skilled cabinet carpenter, in the constitutional sense. He envisions a plan, selects his ideal structure and then assembles all the pieces and, with a sharp and focused chisel, his cabinet emerges. Whether the cabinet is stable and useful is altogether a different matter; a little folded paper under the ever-present wobbly leg may be workable. Given the extent of cabinet re-shuffles by Zuma since 2009, some may suggest that reconfigurations of the Cabinet indicate that a modular approach has been adopted. Parts are easily interchangeable, even if they don’t actually fit. A square peg in a round hole simply means more force may be necessary to achieve a fit, uncomfortable as it may be. Think Nhlanhla Nene and Des (Dave, David) van Rooyen. This swiftly followed by the return of Pravin Gordhan as Minister of Finance and Des van Rooyen being “redeployed” as Minister of Co-operative Governance. Des was gifted a seat at the table, unstable as it then was.
With no security of office, remaining part of the Cabinet requires loyalty and obedience to the President. Otherwise, the chisel comes out and a re-carving of the Cabinet may ensue. The constitutionally prescribed oath of office, taken by all Cabinet members doesn’t mention obedience to the President. Rather the oath includes an affirmation to be faithful to the Republic and to obey, respect and uphold the Constitution and all other laws of the Republic. Unless there is a second, secret, oath taken by ministers on assuming office in the Cabinet along the lines of: “Mr President, I will do what you want, when you want and how you want, so help me Mr President.”
Each minister, and deputy minister, is responsible for a portfolio as assigned (or created) by the President. The Deputy President must be a member of the National Assembly. Ministers and deputy ministers, bar two in each instance, must also be members of the National Assembly. South Africa has a closed-list proportional representation electoral system. Voters do not determine political party lists; this is exclusively a strictly party issue. So, between the ministers, their deputies and the members of the National Assembly, may a Member of Parliament ever vote according to their conscience or is the ruling party line mandatory, with fear and with prejudice?
Maybe the Cabinet and the ANC Members of Parliament should spend some time watching the various releases of the Expendables film franchise on DSTV. Sylvester Stallone and his entourage of heavies, not least the legendary and ubiquitous Chuck Norris, defeating what for others would be insurmountable opposition. The President could feature in a special release; Expendables 783 + (a working title). Nkandla, with a myriad of security features could be a perfect setting. Our Cabinet appear well qualified on ensuring undetected emergency exit plans from South Africa, so a cameo role by President al-Bashir could even be included. Multiple court cases, security transfers and undetected flights. What a script. Maybe the final title should be Expendables – Flight from South Africa. An Oscar nomination for best foreign picture may be in the offing. If not, a Golden Raspberry Award. Surely it couldn’t be worse than Sarafina.
However, the Expendables is the subject of all sorts of complex intellectual property rights and restrictions. So, another working title could be Zuma’s: The Compurgators Ball.
In medieval times, trial by compurgation was all the rage to determine the guilt or innocence of an accused. Briefly, how it all worked was that an accused would take an oath of innocence. Then, the accused would call a number of “oath-helpers” (compurgators) to declare that they believed the accused was telling the truth. Compurgators then swore an oath to the accused’s innocence. Compurgators were character witnesses, often friends and associates of the accused, possibly even neighbours, but not eye-witnesses to the incident having no actual knowledge of the accused’s alleged crime. The higher the social status of the compurgator, the more weight would be attributed to the oath on the innocence of the accused. If the number of compurgators believing the accused was innocent exceeded the number believing his guilt, then that was the end of the matter. The accused was acquitted.
For any unfortunate accused without access to sufficient compurgators of appropriate standing, a trial by ordeal would be necessary: ordeal of fire, ordeal of boiling water, ordeal of cold water, ordeal of the cross, ordeal of poison… and whatever other dastardly ordeal that could be conjured up. Fortunately, civilised society has moved on from this. Some went for what is now popularly known as the jury system. Others left the decision in the hands of a judge, sometimes sitting with assessors. The point being that no longer does any legal system simply allow that a group of compurgators can (or should) be able to establish the innocence of an accused. Correctly so. In a jury system, a number of individuals are expected to adjudicate and make a finding based on the facts as presented to them. Impartial, objective, adjudication is the essence.
South Africa had a jury system, abolished in 1927 for civil cases and 1969 for criminal cases. Now, in criminal trials, a judge sits with assessors, depending on the circumstances. What of trial by compurgation? By all accounts, this has never applied in South Africa. Historically that may be. However, trial by compurgation appears to be alive and well, even thriving, in South Africa. Events relating to Nkandla support this. Not to mention responses for the dismissal of Mr Nene. Are the members of Cabinet, and the ANC members of the National Assembly not simply compurgators under another name?
Can any reasonable and rational person seriously suggest that the fire-pool and chicken run at Nkandla are in any way security features? Well, some members of the Cabinet and ANC members of the National Assembly, the present day compurgators, apparently believed so. The President eventually “agreed” to pay back a fraction of the total costs. Although some way short of the real cost it would appear.
What of President Omar al-Bashir’s hasty, Houdini style, exit from South Africa? How is it possible that he managed to evade every security feature we apparently have and fly home? Ask the compurgators. Let’s not forget the FIFA scandal and the payment to some dodgy Diaspora Legacy Programme. How was this possible? Ask the compurgators. The incumbent President’s involvement in this particular fiasco is probably limited. Nevertheless, the Cabinet have tried to add some positive spin on this, with little success. Our Minister of Sport and Recreation, “Mr Razzmatazz”, a Beyoncé groupie and twitterati, grabbed this as a limelight opportunity, even inviting the FBI to call him any time. Chances are it will be a missed call. One can only imagine how that call would have gone down if he had answered. Point is, the compurgators are in full swing. All for one and one for all appears to be the order of the day. Forget the Three Musketeers, in South Africa we have the compurgators.
To be fair, the compurgators’ web extends beyond the President and his Cabinet. Think of the Deputy Minister of Finance, Mcebisi Jonas, and his current spat with the ubiquitous Gupta family. Jonas has made certain allegations regarding a meeting which he alleges occurred at which Mr Ajay Gupta was present and offered certain financial benefits. Not so, claims Ajay Gupta, and in charge his compurgators, Fana Hlongwane and Zuma junior, Edward. Jonas is wrong they say (lying is what they really mean). There was never a meeting close to the shebeen or otherwise, they profess. Edward of course is also not an ardent fan of our Minister of Finance; on the contrary, it appears he despises him. For reasons that may be unclear to very few. The good news from all this peripheral noise is that the potential film franchise is expanding. The next release could be titled The Compurgators: Escape from Saxonwold. No shebeens will be identified or referred to directly in this particular film. That is for the next release. Maybe that title of the next release could be The Compurgators: Escape from the Saxonwold Shebeen.
By all accounts, even though we no longer have a trial by jury, trial by compurgation appears to be alive and well. Not a trial in the conventional sense of course. Rather a political review and public commentary and outpouring of sorts, majority members of National Assembly and the ANC being the “jury”. Based on recent pronouncements, the ruling party would apparently prefer that disputes involving the executive or legislature not be resolved by an independent judiciary, fearing the judiciary may step on their toes. Better, so the ruling party suggests, resolve disputes politically and even internally. Whatever that may mean.
What of the separation of powers and the rule of law? Well, suggests the ANC, great theory but best to put that aside. The ANC are the elected majority and are thus in control. The unelected judiciary cannot tell the elected majority what to do. According to Comrade Gwede Mantashe, the judiciary has a tendency to over-reach on its mandate. The judiciary is, so Mantashe claims, meddling in matters that do not concern it. The rule of law is not an absolute and deference to the ruling party, the Executive and the Legislature is necessary. The judiciary of course is not even an elected body as we all know. Mantashe also suggests that courts in the Western Cape and North Gauteng in particular are on a mission to usurp the power of the Legislature and the Executive. Why? Because they apply the rule of law?, As for the former Deputy Chief Justice well, so some allege, he was a vigilante of sorts. Why? Because he supported and applied the rule of law as constitutionally required. No, say the ever growing and enthusiastic band of compurgators. He was anti-establishment. Therefore, he was anti-ANC. An anti-compurgator some would suggest.
In short, it is the view of some commentators that the courts should just stay away from matters involving the Executive and Legislature. The Public Protector, in particular, needs to take heed of this admonition. So we are faced with a re-definition of the separation of powers as follows: cases may be heard by the courts provided they have no bearing on the powers of the Executive and Legislature. To the Judiciary; pay attention to the fact that you may not question the actions of the Executive and Legislature. The result is that the separation of powers is apparently to be redefined as being that where the only separation is between the Executive and the Legislature, without any judicial oversight. Whatever the Executive or Legislature may decide are not matters concerning the Judiciary. The separation of powers only exists as between the Executive and the Legislature. Where then are the checks and balances in all of this? There are none. Mantahse and others in the ANC, unelected as they are in terms of the Constitution, and the compurgators are then in absolute control. It almost appears this is a move back to the days of parliamentary supremacy, better regarded as ANC supremacy.
Maybe it is time for night vigils throughout the country to burn the Constitution? Parliamentary sovereignty returns. Compurgators will unite as the festivities are celebrated not least in the cyber world. Which will no doubt include #compurgatorsunite and #parliamentarysupremacyrules which will become all the rage for some that may be social media friendly. The consequence, #theconstituionisdead will hit social media in opposition. Then, cyber war will commence. Can this be worse than the disruptive and violent events we all see in Parliament?
In conclusion, a message to the President, those at Luthuli House and the compurgators. Back off. Constitutional jurisprudence is thriving. The Constitution was fought for with many sacrifices. Now it is real, relevant and applicable. All, without exception, are accountable to the Constitution. That the Constitution may now be inconvenient for some is something these individuals need to live and deal with. Amend the Constitution, if you think you can. Unlikely as this may be. There is no sequel The Expendables: Abandon the Constitution. The Constitution is alive and well and will continue to grow in relevance. The Compurgators’ Ball is simply a distraction.
Advocate Chris Shone is a director of Accountability Now.
This article was published in the Daily Maverick on 20th March 2017