Former President, Jacob Zuma and Former Public Protector, Thuli Madonsela: Which One Had the Power to Form the Zondo Commission?

Mutumwa Mawere, 07/02/2021

Legal and constitutional questions that are inherent in the establishment of the state capture commission of inquiry are largely masked by the reality that former President Zuma acquiesced to the order by the former Public Protector, Ms. Thuli Madonsrla.

The former Public Protector, masterminded the establishment and appointment of a Commission headed by the Deputy Chief Justice Zondo.

In the C2C Civics and Legal Literacy group where this matter is heavily contested, a dispute is raging as to whether the Madonsela order passed the constitutional muster.

There is a strong view being expressed that in terms of s84(2)(f) , it is the President who is vested with the power to appoint a Commission of Inquiry and as such the order by Ms. Madonsela was ultra vires the Constitution.

If this view is accepted, then the dispute regarding the alleged defiance by President Zuma that he was a victim of state capture in relation to the appointment that he was forced to make by Ms. Madonsela with the complicity and constructive involvement of the judiciary will be justified.

In November 2016, the former public protector, Ms. Madonsela ordered that a commission of inquiry be instituted to establish the true facts in relation to state capture allegations.

This came after she had investigated allegations that the Gupta family wielded influence over Zuma and that cabinet ministers with links to this family were also subsequently appointed by Zuma,.

Zuma applied for an urgent interdict to stop the release of Madonsela’s report just a day before Madonsela was to release it, on her last day in office but his lawyers were only forced to withdraw the application in the North Gauteng High Court after establishing that the High Court had already ordered that the report be released.

This 335-page report informed the decision to set aside the limitation imposed in the Constitution that only the President in his discretion possessed the legal right to establish a commission of inquiry.

Ms. Madonsela substituted the President with the Chief Justice as a party clothed with the power to identify the Chair of the Commission leaving Zuma with the residual power to rubber stamp the process.

Some have argued that in relation to Trump who was also impeached, at no stage was he stripped of his powers based on untested allegations.

Although Ms. Madonsela was confident that she had uncovered evidence of corruption that justified the unprecedented decision to strip Zuma of powers reserved to him, there can be no legal and constitutional justification of the pathway chosen.

The involvement of the Chief Justice in a scheme that was patently unconstitutional, the judiciary cannot escape being accountable for this decision and prosecuting it.

A precedent had been set of judicial interference with executive decisions to permit any rational mind to conclude that Zuma had no grounds to challenge the process and outcome of a fatally defective scheme.

While commenting on the issue, Mr Chitambo said, “It is the role of journalists to unravel the mysteries behind what Zuma is alleging and the truth.

The same judiciary system prosecuted and convicted Mandela. So the onus is now on all progressive democratic forces to point towards the Truth. This should be a wake-up call to all Africans that we need a radical shift towards setting our own narrative of what it is the meaning of justice.”