Legal+View+on+Political+Inquiry,+Maluleke,+B+Day




 * Business Day, Johannesburg, 08 September 2005**

=A legal view on a political inquiry=


 * Eddie Maluleke**

PRESIDENT Thabo Mbeki, in his capacity as the president of the African National Congress (ANC), has suggested that an internal inquiry be constituted to respond to the theory that within the broader movement there is a “counter-revolutionary, capitalist and neoliberal offensive” aimed at frustrating Jacob Zuma’s quest to contest the presidency of the ANC and the country.

This arises largely from the statement some time back by the Scorpions that there was a prima facie case against Zuma, but, because it was not winnable, no prosecution would follow unless more evidence presented a stronger case. The statement by Judge Hilary Squires that there was “a generally corrupt relationship” between Zuma and his financial adviser, Schabir Shaik, prompted the Scorpions to reconsider. Suspicion about an agenda was increased by the raid on Zuma’s home.

However, a commission of inquiry might face challenges. Broadly, the task of the commission, if instituted, would be to investigate the veracity of allegations that there is an agenda to subject Zuma to a political trial and “deliberate, hostile political persecution”. In that regard, the argument goes, the “powers that be” are exploiting state apparatus to advance this cause.

That an inquiry would be an internal political exercise of the tripartite alliance is cause for concern.

The process aims to find the truth and shunning those making a mockery of our democracy. But it might be that only the politicians or members of the alliance would testify.

First, this overlooks that, embedded in the allegation is the theory that there is exploitation of public power — the use of state institutions such as the Scorpions to further the goal. Surmising that this is the case, at what point does it cease to be a private affair? If public power is used to achieve a political goal, it is a violation and abuse of public power, and in my view a transgression of the constitution and statutory authority.

Under the pretext of the allegations, the only people who could infringe on the constitution are the public officials who took an oath to observe constitutional values and principles. At this point, it is no longer a private matter, but public, requiring the observance of the law and constitutional principles.

Second, it would be interesting to observe how a political process would be subjected to a legal analysis. A political perception could hardly be subjected to a reasonable test. The conviction, for example, might be that some politicians harbour a political agenda to make sure that Zuma does not succeed. How do you subject that to the law or legal analysis in this inquiry? You need evidence — something beyond viva voce. You need hard-core evidence that could be tied to the allegation that advances the theory. Is it possible that one could achieve that? I do not think so.

Third, if the exercise proceeds and it is found, after extensive investigation, that yes, people in public office have used their powers to advance that political cause, what would be the implications of this finding? What would be the recommendations? How would the recommendations be implemented?

If this were the finding, what would it mean for the Zuma trial? Should the court process cease if it is found that there was exploitation of state apparatus in the manner suggested?

What would happen to the credibility of the Scorpions?

What are the implications for the constitutional values that underpin our democracy?

An inquiry should be thoroughly conceptualised before implementation.

As a proponent of constitutionalism and human rights, I am concerned. I continue to defend the constitution because I believe in the values and the ideals it aims to attain.


 * **Maluleke is a constitutional law expert and MD of Mn’wanati Consulting.**


 * From: http://www.businessday.co.za/articles/topstories.aspx?ID=BD4A89357