Last week counsel for President Zuma, Mr Hulley made the remarkable claim that ‘it is against our constitutional framework to charge and/or prosecute a sitting President’. He was responding to proceedings launched by the Democratic Alliance (DA) in the North Gauteng High Court for the review of the National Prosecuting Authority (NPA)’s decision earlier this year not to prosecute Mr Zuma.
The DA appears to have based its locus standi in the case on s38(d) of the Constitution which allows ‘anyone acting in the public interest’ to ‘approach a competent court’ if it can be alleged that ‘a right in the Bill of Rights has been infringed or threatened’. It is important to note that those wishing to invoke Section 38 must show that a right in the Bill of Rights - and not a principle drawn elsewhere from the Constitution - such as the rule of law or the separation of powers - has been breached. From the DA’s papers it would appear that the right upon which it seeks to rely is s33 of the Constitution - the right to just administrative action. The DA contends that the NPA’s decision not to prosecute Mr Zuma breached the provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and s33 which requires inter alia that administrative action should be ‘lawful, reasonable and procedurally fair’. In pursuing this line of attack, the DA will, however, have to get around the fact that in terms of PAJA’s definitions administrative action does not include ‘a decision to institute or continue a prosecution’ (although it, admittedly, says nothing about a decision to stop or suspend a prosecution).
Hulley’s contention that a sitting President cannot be charged or prosecuted cannot go unchallenged since it breaches some of the most fundamental provisions of the Constitution. These include s1(c) which affirms the supremacy of the Constitution and the rule of law; s1(d) which requires accountability; s2 which states categorically that the Constitution is the supreme law; s8(1) according to which the Bill of Rights applies to all law and binds the legislature, the judiciary and all organs of state; s9(1) which affirms that ‘everyone’ (including the President) ‘is equal before the law...’; s83(b) which requires the president to ‘uphold, defend and respect the Constitution as the supreme law of the Republic’; s84 which limits the President’s powers to those that are entrusted to him by the Constitution; and s89 which states that the President can be removed from office by the National Assembly for ‘a serious violation of the Constitution or the law’.
All these sections express an unambiguous constitutional imperative that the President, both in his capacity as head of state and as head of the executive, is definitely not above the law.
Section 1(d) – which is a founding provision – requires that government must be accountable. The President who is, undoubtedly a part of the government, must also be held accountable to the Constitution and the rule of law, as required by s1(c ).
In terms of s7(2) the President is duty bound as part of ‘the state’ to ‘respect, protect, promote and fulfill the rights in the Bill of Rights’. One of these rights is found in s9 of the Bill of Rights which states that ‘[e]veryone is equal before the law’. This ‘everyone’ includes the President who, in terms of his duty to ‘respect, protect, promote and fulfill’ constitutional rights must render himself subject to the benefits and penalties of the law, as must every other person, natural or juristic. More directly, in specific relation to the President, the Constitution requires the President, as the Head of the State and head of the national executive to ‘uphold, defend and respect the Constitution as the supreme law of the Republic’. Furthermore, even the powers in s84 of the Constitution - for example, the power to pardon prisoners, confer honours, to declare war and to appoint special commissions of inquiry - have been conclusively held by the Constitutional Court in President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) to be subject to judicial review. The Constitutional Court has clearly pointed out that this is in line with the doctrine of the separation of powers which is informed by the constitutional principle of the rule of law and the avoidance of an abusive concentration of power in one branch. Thus there remains no power or action, positive or negative that the President may exercise, in terms of the Constitution, which would not be subject to the law and the supremacy of the Constitution.
Furthermore, s89 of the Constitution provides for the removal of the President from office by the National Assembly, if the he has committed, inter alia, a ‘serious violation of the Constitution or the law’ – which clearly implies constitutional acceptance that a sitting president can, indeed, be charged and/or prosecuted for a crime.
Mr Hulley has stated that he will be presenting further arguments to support his contention. However, we doubt that they will have much impact given the clear and peremptory requirements of the Constitution, spelled out above. A sitting president in the Republic of South Africa is not above the law and is not immune to being charged and/or prosecuted. Were it otherwise, the rule of law, the supremacy of the Constitution and the doctrine of the separation of powers would be fatally subverted. It would mean the end of our constitutional state.