President Thabo Mbeki, in an unprecedented case in the South African Constitutional Court, is using the same arguments his rival Jacob Zuma used to win the case that caused Mbeki’s downfall, a constitutional law expert said on Tuesday.
“There is some irony in this,” said Pierre de Vos. “He [Mbeki] is making two of the same arguments Zuma made… that his right to dignity has been infringed upon and that he hasn’t been given an opportunity to give his side of the story,” De Vos said. Mbeki lodged an urgent application in the Constitutional Court on Monday to appeal against sections of the judgment handed down by Judge Chris Nicholson in the Pietermaritzburg High Court on September 12.
“There is some ground for Mbeki’s complaint,” said De Vos, but added that it was a very complicated case. “Very difficult legal and constitutional issues are raised by his application because he was not party to the case [in the Pietermaritzburg High Court] and no leave of appeal has been granted yet by the judge.
“Yet, he is directly approaching the Constitutional Court.” De Vos said Mbeki was arguing that only the Constitutional Court could decide whether the president had failed to fulfil a constitutional obligation. In this case, Mbeki is arguing that Nicholson found that he had failed to fulfil his constitutional obligation to respect and protect the independence of the National Prosecuting Authority. “It [Mbeki’s application] is not far-fetched… but there is no precedent for this case,” said De Vos.
Mbeki announced on Sunday that he would resign as president after the national executive committee of the African National Congress decided to remove him from office following Nicholson’s ruling. Nicholson, in a judgment that found the decision to prosecute Zuma on fraud and corruption charges as invalid, also said: “I am… not convinced that the applicant [Zuma] was incorrect in averring political meddling in his prosecution.”
De Vos said he believed the judge unnecessarily strayed into the political arena. “I think on the legal grounds one can fault the judge as straying too far into the political arena, especially the statements that it was unfair to dismiss Zuma [as deputy president in 2005]. That is the political prerogative of the president. He should not in my opinion have made any statement about that.”
Mbeki is arguing that Nicholson’s statements were “unfair and unjust” in papers lodged before the Constitutional Court on Monday. “I respectfully submit that it was not necessary for the learned judge to make the findings I am appealing against, or seeking to set aside, in order for him to decide the real issue that was before him. “In any event, it was improper for the court to make such far-reaching findings concerning me.” Mbeki said the judgment was made “without having afforded him a hearing”.
It constituted “a violation of his constitutional rights” including his rights to access to courts and dignity. He wants the Constitutional Court to set aside “all findings of law and fact in the judgment concerning the applicant [Mbeki]”. “The findings… also go further in that they in effect say that I have failed to fulfil the constitutional obligation to uphold and respect the Constitution as the supreme law of the Republic,” said Mbeki. “As a direct result of the findings made pertaining to me… the national executive committee of the African National Congress has decided to recall me as President of the Republic of South Africa.”
“It is unfair and unjust for me to be judged and condemned on the basis of the findings in the Zuma matter. The interests of justice, in my respectful submission, would demand that the matter be rectified.” He also said there was a “real possibility” that “persons with malicious intent could act on it [the judgment] to the detriment of the office of the President of the Republic of South Africa.
“Unless the errors in the judgment are rectified immediately by means of a judgment, I will continue to suffer and may even suffer great harm as would the office of the President of the Republic of South Africa and members of the national executive.”