The Constitution 1; Power Abuse 0
Much ink has flowed over the Erasmus Commission of Inquiry, but what
few commentators have grasped is this: on Monday, when the Cape High
Court ruled that the Commission was unlawful and unconstitutional,
South Africa passed a litmus test of constitutional democracy.
What is that test?
It is when the ruling party's efforts to defeat its political
opponents through means other than the ballot box are rejected by
those institutions which the Constitution entrusts to limit – and
prevent – the abuse of state power.
As the High Court found, the Erasmus Commission was nothing but an
illegal attempt by the ANC provincial government to embarrass and
discredit the DA. The ANC's strategy was two-fold:
Firstly, it was an attempt to divide the multi-party coalition in Cape
Town so that it could take back the City. This became clear in May
when Jacob Zuma said: "We should not allow anyone to govern our city
[Cape Town] when we are ruling the country." The ANC has never
accepted its defeat in Cape Town; the Erasmus Commission was simply
another (and the most sophisticated) attempt to unseat the DA outside
of the electoral process.
Secondly, the establishment of the Erasmus Commission was part of a
strategy to prevent the DA from winning the Western Cape election next
year. The ANC believed that if it could smear the DA by giving a host
of aggrieved and dubious characters a public platform (under the guise
of judicial impartiality), it might be able to retain the Western Cape
despite the odds that are increasingly stacked against it.
The former Premier Ebrahim Rasool knew that executing this strategy on
behalf of the ANC would be his best chance of surviving the purge of
Mbeki allies that was always imminent when the political sands in the
ANC had begun to shift in favour of Jacob Zuma. Of course, this did
not work; once the ANC realised that the Erasmus Commission would
never withstand the scrutiny of the courts, Rasool was removed from
office and redeployed.
I said this week that the Court's verdict is not a victory for one
political party or even the City of Cape Town alone. It is a victory
for the Constitution. It shows that the judiciary is prepared and
willing to check the ruling party when it abuses state power in an
attempt to deprive its political opponents of power.
Because the DA and I (with the Desai Commission indelibly etched in
our memories), knew that the Erasmus Commission was nothing but an
unconstitutional smear campaign, we opposed it implacably. We knew
that allowing the ANC to abuse power in this way would set a
dangerous, and perhaps even irrevocable, precedent for our
constitutional democracy.
The allegations against us of illegal spying were a fabrication from
the start to give a cloak of legitimacy to all the illegal and
unconstitutional activities that followed. So too was the falsehood
that the City Council had paid for an investigation undertaken by the
DA. I welcomed the police investigation into these allegations and
called for us to be charged in a court of law if there was any
evidence of wrongdoing. This never materialised; instead the Premier
chose to bypass the police, the prosecuting authority and the courts
in order to set up his own political commission.
We made all these points at the time, but they were understood only by
a handful of commentators and journalists. The majority gleefully
seized on the possibility that it was the DA for once, and not the
ANC, that might have been involved in wrongdoing.
There were three main criticisms levelled at us when we decided to
fight the establishment of the Commission.
Firstly, several columnists, leader writers and satirists accused the
DA, the City of Cape Town, and me personally of rejecting the Erasmus
Commission because we wanted to conceal the truth.
In The Star, Jovial Rantao said: "What has Helen Zille got to hide?
What is it that the Democratic Alliance is desperately trying to keep
away from the public? What is it that the City of Cape Town, run by
the DA, is trying to hide from the ratepayers?"
Pierre de Vos, a Professor of Constitutional Law, no less, declared:
"One would have thought that if the DA – and Zille in particular – had
nothing to hide, it would welcome the chance to clear its name through
such a commission of inquiry".
That the City had asked Advocate Josie Jordaan SC to conduct an
exhaustive inquiry into whether the City had broken any law in
carrying out its investigation into Councillor Chaaban was lost on
them. So, too, was the fact that the City had opened up all its files
to the police to investigate, and withheld nothing. Despite a full and
protracted police investigation, no evidence emerged that the City of
Cape Town had contravened any law, or that the DA had engaged in
illegal spying. No charges were laid.
Even the interim report of the Erasmus Commission found that neither
the City nor the DA had engaged in illegal spying. The great irony is
that the only person who was illegally spied upon was me. My cellphone
records were illegally subpoenaed from Vodacom by the Erasmus
Commission and handed to the ANC. It was my home phone that was found
to be tapped at the time of the Erasmus Commission.
The simple reason for resisting the Erasmus Commission was because, as
far as we were concerned, in the absence of any charges or evidence to
the contrary, we had done nothing wrong. Why would we allow an
unconstitutional political hit squad set up by the ANC to smear us
through lies and innuendo that would be reported every day in the
media as if they were fact?
Secondly, I was roundly condemned for the comment I made on radio
that, "some judges allow themselves to be abused, and unfortunately
Nathan Erasmus is one of them".
At the time of my statement, the Cape Argus claimed that "…Zille has
resorted to…a ploy that…threatens to undermine the judiciary". The
Sunday Times suggested that my statement contained "the dangerous
accusation that a member of the judiciary is serving the interests of
a political party". Professor De Vos argued that my comment was "no
different from the ANC Youth League and Young Communist League
diatribes and shows a scandalous disregard for our Constitution".
What these commentators never grasped was that the Commission was not
a court and its chairman was not acting in his capacity as a judge;
therefore he could not expect the deference due to a judicial process.
This view has now been vindicated in the Cape High Court. Yet, as
recently as Wednesday, an editorial in Die Burger stated that
"although Zille is right [to have criticised Erasmus], she is also
wrong". The implication is that somehow my statement about Erasmus
constituted an attack on the independence of the judiciary.
In fact, it was Erasmus's acceptance of an appointment to a political
commission that undermined the independence of the judiciary, not my
criticism of him for doing so. In choosing to ignore the
Constitutional Court guidelines that "judges should not get entangled
in matters of political controversy", Erasmus opened himself up to
legitimate criticism.
The court ruling itself notes that it was inappropriate for a judge to
head a commission of inquiry which was so clearly political in nature,
as this risked compromising the independence of the judiciary. It
states: "That the government would want to use judges for their
purposes is one matter but that judges should allow themselves to be
used is quite a different one... The notion of being used by the
executive in this way is anathema to the judicial calling and is the
very antithesis of the separation of powers".
The third line of attack against us was that, by resisting the Erasmus
Commission, I was becoming bogged down in a local issue. The Cape
Argus accused me of suffering from "anxiety attacks" and asked: "Were
those critics right who suggested that it would be problematic for one
person to be both mayor and leader of the DA?"
Those who argued that I was allowing a parochial issue to distract me
from more pressing national matters missed the fundamental point that
the Erasmus Commission would have profound national repercussions if
it were allowed to continue. If the ANC could get away with this kind
of unconstitutional action, why would it ever have to accept the
result of an election that went against it anywhere?
We fought the Commission because it was power abuse and because we
agree with the old cliché that "bad things happen when good men do
nothing." Power abuse – particularly at a time when the ANC is making
menacing sounds about the Constitution – must be stopped in its tracks
wherever it occurs.
There are some who argue that it is hypocritical of the DA to have
opposed the Erasmus Commission but not the Zuma trial. They draw
parallels with the Erasmus Commission and what they believe is the
"selective prosecution" – a form of power abuse – by one ANC faction
to discredit another.
The key difference is that Zuma is before a court of law; the DA and
the City were not. The parallel would only have credence if a police
investigation had failed to provide the basis of a credible charge
against Zuma in court, only for President Mbeki to sidestep the
criminal justice system and set up an illegal commission anyway,
handpicking his own judge to chair it, in order to conduct a political
witch-hunt to discredit Zuma. If this had happened, it would have been
credible to talk about persecution. However it did not. Zuma is being
properly prosecuted through the criminal justice system.
As we move forward, we can be encouraged that we have a Constitution
and a judiciary that effectively protect us from power abuse by the
ANC. The High Court ruling marks a watershed judgment on the
separation of powers and the prevention of power abuse by the ruling
party. At a time when the ANC often seems to disregard the
constitutional constraints on its power, the fact that the courts have
acted decisively and emphatically is something from which we can all
take heart.
Best Wishes
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