Incredible, ridiculous, dangerous

Does Michael Hulley really believe the things he says in his replying affidavit to the application by the DA to have the decision of the NPA to drop the charges against President Jacob Zuma reviewed? Did he have one cup of tea too many before drafting this affidavit or does it reflect Hulley’s – and by implication President Zuma’s – sinister view of the Constitution and the constitutional position of the President?

The document reads more like a political campaign brochure than a legal document – like something the majority of members of the Judicial Services Commission (JSC) might have drafted in a less rigorous moment. If it really reflects the views of the President and his legal team about our constitutional democracy, we are in big trouble because it would suggest that they believe some animals are more equal than others in our constitutional state.

The heart of the application deals with the question of whether the DA has the necessary locus standi to bring the review application, arguing that the DA “is incapable of acting in the public interest if it does not itself have any legal interest in the matter”. Why is this? Well, because the DA is not the ANC, is thus anti-ANC and therefore cannot possibly have the broader public interest at heart:

The DA is a political party which always, since its formation, has been a minority and opposition party. Since its establishment its public comments have often expressed its sentiment that it is a self-appointed political watchdog as opposed to a party attuned to actually governing South Africa . . . The DA has thus adopted a role in South African politics where it seeks to retain and / or broaden its voter support by undermining the ruling ANC party in every conceivable way and to seek to discover whatever negative aspects it can about National Government, the ANC generally and all prominent ANC members. In short, its approach is not to work towards solutions but to carpingly criticise Government, the ANC and prominent ANC politicians using whatever material they can obtain in this regard and then to procure maximum publicity for such adverse comments.

Whatever one’s view of the DA is, it still is the official opposition in South Africa and it has a constitutional right to carp as it likes and to expose whatever negative aspects of the ANC it can find. Whether this is always wise is besides the point. That’s called democracy, something MR Hulley does not seem too familiar with. This affidavit suggests a profound disrespect for multi-party democracy and contains party political propaganda that does not belong in a legal document.

In any case, the argument is completely fallacious. The DA application is premised on the right to a fair administrative hearing, guaranteed in section 33 of the Constitution, and the right to equality, guaranteed in section 9 of that self-same Constitution. Section 38 states that:

The persons who may approach a court are: anyone acting in their own interest; anyone acting on behalf of another person who cannot act in their own name; anyone acting as a member of, or in the interest of, a group or class of persons; anyone acting in the public interest; and an association acting in the interest of its members.

These standing provisions are so broad and all-encompassing that it would be close to impossible for any court to make a credible finding that a political party has no standing to bring a review application of this kind. Unless, perhaps, the application is motivated by a vexatious and vindictive harassment of an individual or group and no right in the Bill of Rights could possibly be implicated in the case, a court must grant locus standi.

Hulley must know this, so why make the argument?  Perhaps because the affidavit constitutes an attempt to bully and intimidate the judges who will have to decide on it? Incredible, ridiculous, and – yes – very dangerous.

Even more remarkable is the argument put forward by Hulley that the the President is above the law and the Constitution, that he would be too busy to face charges, that the law should not be applied to the President because it would have dire consequences for the country, and thus that the whole application is academic.

[A]n incumbent State President (sic), like the President of the United States, cannot be charged with criminal conduct (or continue to be prosecuted) during his incumbency. Charges can only be brought if he is successfully impeached in terms of the Constitution or after his term of office ends. . . .

[A] prosecution of an incumbent President will, inter alia, offend the doctrine of separation of powers by seriously interfering with the Executive and thereby subverting the entire constitutional framework. Moreover, it is simply inconceivable that a National Director of Prosecutions would exercise his prosecutorial discretion so as to indict a sitting President in the light of these considerations. That power is vested elsewhere, that is, in Parliament, which is the only body vested with power over the President.. . .      These considerations are linked also with the principle that the law will not allow a legal act to be voided if the consequences thereof result in far greater harm than the strict enforcement of the requirements of that legal Act. The dire consequences of what the applicant seeks, speak for themselves, especially in view of the 2010 World Cup, the economic recession and the need for all to address these issues responsibly.

One could of course make a plausible political argument that a sitting President should not be charged with serious criminal conduct while in office. But there is a very simple solution for this problem. The President facing such charges can resign to deal with the prosecution. A new President may even pardon the former head of state in terms of section 84 of the Constitution after such a resignation. That is what happened with Richard Nixon during the Watergate scandal.

Or, more radically, the Parliament can amend the Constitution to make clear that a sitting President is above the law. This would be more tricky as this would fundamentally undermine the founding value in section 1 of the Constitution, which states that the Constitution is supreme and is based on the Rule of Law, so a 75% majority in the National Assembly would be required for such an amendment, a majority the ANC does not have.

But as a legal matter, the argument that the sitting President (unlike apartheid South Africa, democratic South Africa does not have a State President as Mr Hulley seems to think) is a shocking absurdity. In a long line of cases starting with the Hugo case, the Constitutional Court has affirmed that the President is subject to the Constitution and the Law. This is a necessary consequence of the supremacy of the Constitution and the principle of the Rule of Law.

As part of the doctrine of separation of powers, courts have the power to enforce the Constitution and the law which binds everyone – even a self-styled State President.This is not an infringement of the separation of powers, but a manifestation of it.  Mr Hulley’s argument is very dangerous indeed. It would mean that the prosecution of the members of Parliament for the Travelgate scandal is unconstitutional because it interferes with the separation of powers. It would also mean a sitting President could order the torture and killing of all his political opponents without having to fear any legal consequences – at least for as long as he remains President.

The President would also be able to breach any provision of the Constitution or legislation passed to give effect to the provisions of the Constitution (even when this constituted a criminal offense) and would not be able to be prosecuted for as long as he remains President.  For example, the NPA Act prohibits anyone from interfering with its work and states that it is a criminal offense to do so. If the President has the head of the NPA assassinated  or if the President illegally and criminally orders the National Director not to prosecute a political crony, the President would not have to face any criminal charges – until such time as he retires.

If Hulley’s argument is accepted, it would constitute an invitation for abuse of power of the most serious kind.  Such a view is in fundamental conflict with the principle of the Rule of Law. The Hulley affidavit suggests that our President (or at least his legal representative) does not believe in the Rule of Law at all, that he thinks he is above the law, and that courts cannot sanction him for breaking the law while he is a sitting President.

This seems to me like Banana Republic stuff.  Incredible. Ridiculous. More importantly, dangerous.

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