A glimmer of hope: Some lessons from the Nkandla case of South Africa (1)
It has become fashionable within the African continent to witness the extreme form of impunity reigning in all the four corners of the continent. This has emboldened the African Union (AU) to declare its intention to withdraw from the International Criminal Court (ICC).
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All these have taken deep roots on the continent mainly because the normal constitutional oversight institutions which are supposed to provide checks and monitoring that can halt reckless lawlessness and impunity have not been operational.
It is against this backdrop that any concerned citizen of this continent should heave a big sigh of relief from the judgement handed down by the Constitutional Court of South Africa in the Nkandla Case on March 31, 2016.
Background
For the sake of those not familiar with the Nkandla case, a brief account is offered. Nkandla is not the name of the case, but the subject matter of the case. It is the private homestead of President Zuma of South Africa. The President’s private home, Nkandla, was upgraded at public expense to provide security for the President and his family.
It, however, turned out that the upgrading went beyond security and included non-security items such as swimming pool and recreational facilities, thus exceeding the original cost by millions of rands. The public protector was approached by some concerned citizens to carry out an investigation into the alleged excesses. The public protector did her investigation and submitted her report to the National Assembly as the constitution demanded.
Her report addressed two issues: her findings and remedial action. Her findings were that the upgrading included non-security features. In terms of remedial action there were two parts. First, she requested that the President should pay a proportion of the cost for the non-security fixtures as would be determined by the national treasury.
Second, the President was to reprimand the ministers who had authorised the non-security upgrades. Instead of the National Assembly acting on her report, it rather chose a different route of setting up its own ad hoc committee, which exonerated the President from any wrongdoing and, therefore, he was not required to pay anything. It was the failure of both the National Assembly and the President to act on the Public Protector’s Report that led to the court action.
Two opposition parties: the Economic Freedom Front (EFF) and the Democratic Alliance (DA) approached the Constitutional Court to address the issue. The Constitutional Court was approached in its capacity as the highest court of the land and clothed with the mandate to determine constitutional matters. Among others, the court addressed the issue of jurisdiction and came to the conclusion that it had the “exclusive jurisdiction” to determine the issues brought by the applicants.
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Issue for the court to decide
The most critical issue before the court was to determine the effect of the Public Protector’s Report. Was the report constitutionally binding on the President and if so was the National Assembly also constitutionally bound to act on it? If the court answered the two in the affirmative then both the President and the National Assembly were in breach of their constitutional obligations.
The court, in a unanimous decision, read by Chief Justice Mogoen, did answer the two in the affirmative and, therefore, held that both the President and the National Assembly had violated their constitutional mandates.
In order to answer those questions in a holistic and effective manner, the court painstakingly addressed some fundamental issues relating to constitutionalism, the rule of law, independence of the judiciary, democratic governance and accountability, which were relevant for us in Ghana and most other African countries. This leads to determination of some lessons that can be drawn from the Nkandla case.
Some lessons from the Nkandla Case
The South African Constitution in the Nkandla case has set a very strong precedent for us in Ghana in particular and for the rest of the continent in general. We address the most essential ones.
Supremacy of the Constitution and the rule of law
The Constitutional Court in South Africa has made it abundantly clear that under a constitutional system of governance the Constitution is the supreme law of the land and that all persons and institutions are subject to the its provisions:
But under our constitutional democracy, the Constitution is the supreme law. It is binding on all branches of government and no less on Parliament.. . . Parliament ‘must act in accordance with, and within the limits of, the Constitution’, and the supremacy of the Constitution requires that ‘the obligations imposed by it must be fulfilled’.
Flowing from it is the other imperative that no one is above the law. In the introductory part of the judgement, the Chief Justice spelt out in no uncertain terms the whole essence of constitutional system of governance:
“One of the crucial elements of our constitutional vision is to make a decisive break from the unchecked abuse of state power and resources that was virtually institutionalised during the apartheid era. To achieve this goal, we adopted accountability, the rule of law and the supremacy of the Constitution as values of our constitutional democracy. For this reason, public office-bearers ignore their constitutional obligations at their peril. This is so because constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.”
The same can be said about our departure from military dictatorship to constitutional/democratic rule in 1992. By opting for Constitutional rule we have departed from dictatorial rule and subjected ourselves to the constitutional and democratic system of governance, the rule of law, transparency and accountability. As the court observed:
“The rule of law requires that no power be exercised unless it is sanctioned by law and no decision or step sanctioned by law may be ignored based purely on a contrary view we hold. It is not open to any of us to pick and choose which of the otherwise effectual consequences of the exercise of constitutional or statutory power will be disregarded and which given heed to. Our foundational value of the rule of law demands of us, as law-abiding people, to obey decisions made by those clothed with the legal authority to make them or else approach courts of law to set them aside, so we may validly escape their binding force.” (Para 75, page 38).
Transparency and accountability
However, the mere adoption of a Constitution is not enough. It requires a total and unequivocal observance of the rule of law that outlaws any form of lawlessness, non-accountability and reign of impunity. On this, Chief Justice Mogoeng observed:
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Our constitutional democracy can only be truly strengthened when: there is zero-tolerance for the culture of impunity; the prospects of good governance are duly enhanced by enforced accountability; the observance of the rule of law; and respect for every aspect of our Constitution as the supreme law of the Republic are real.
The South African Constitutional Court has established the principle that all public official and institutions should be held accountable, including the holder of the highest office of the land. As pointed out by the court, “the President has the duty to ensure that state resources are used only for the advancement of state interests”. It, therefore, found the President in breach of his constitutional obligation for failing to carry out the remedial action by the public protector:
“The President thus failed to uphold, defend and respect the Constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the public protector in terms of her constitutional powers. “