By Wilton Nyasha Machimbira
The Public Protector’s remedial action against President Jacob Zuma over the upgrades to his Nkandla home were binding – Chief Justice Mogoeng Mogoeng said.
For all of its failings, South Africa can never be another Zimbabwe. The ZumANC might be turning into another Zanu PF, and its quite clear Robert Mugabe’s misrule is the model for Jacob Zuma, but the strong institutions in the Republic down South imply that the country can never ever be another Banana republic. But not without trying…
The South African Constitutional Court made a land mark ruling on Nkandla case.The SA Con Court noted that the President of the Republic failed to uphold,defend and respect the Supreme law of the land by failing to adhere to and abide by the remedial action by the Public Protector.
Kudos ought to be granted to the Judicial System of South Africa for showing some semblance of independence and championing the rule of law. The SA bench has proved that it is not susceptible to manipulations from the Executive and does not pander to the whims and caprices of the Executive.
The ruling also vindicates the vociferous calls by Democratic Alliance and Economic Freedom Fighters in as far as adhering to the tenets of Constitutionalism is concerned.
The ruling is in stark contrast with the situation in Zimbabwe where a President of the Republic has the audacity to tell the people that 15 Billion USD (ZAR 250 Billion) worth of Diamonds was embezzled.
No one approaches the Con Court for answers.
Its business as usual ,there is deafening solemn statuette silence and the so called Civil Society remains mum. Such apathy is pathetic.
Suffice to say in Zimbabwe pointing an accusatory fingers against the Executive is considered taboo and can attract dire
recriminations and ramifications.
When Gubbay ruled that the land reform was illegal, he resigned under duress.
His ruling was condemned by the Executive and by this the Executive flouted the cardinal principles of the doctrine of Separation of powers.
Justice Gubbay’s Office was stormed by rogue and seemingly intoxicated War Veterans.
He was called a Manchester man with links with the CIA and the uncouth, foul- mouthed and narcissistic Jonathan Moyo went further and castigated what he considered to be anti-land reform lawyers as night lawyers going to see night judges in a night court
to seek night justice.
That marked the genesis of the erosion of rule of law in Zimbabwe. This episode marked the miscarriage and deathknell of the judicial system in Zimbabwe and heralded a new era of Zanu PF government flirting with the Courts if the case of the Supreme Court’s nullification of MDC Speaker of Parliament in 2008 is to go by.
That was a quintessential case where the Zanu pf led government tried to subvert and regain what it lost in an election. Good prevailed over evil though and the man who had brought the case before the Constitutional Court, Jonathan Moyo was left in the cold with egg on his face.
The MDC’s Lovemore Moyo won the Speakership again. However, we still expect a tectonic shift from the Zimbabwean bench. We still expect the bench to carry out its duties with dignity and decorum and it is imperative that Courts in Zimbabwe are depoliticised by any means.
Judicial independence means, at least, that the judiciary is neither dominated nor controlled by the political branches and that it is disentangled to the extent possible from the forces that influence those branches’ policy choices.
Courts must not be used to achieve political ends. Courts should not be used as pawns in politics but in Zimbabwe we witnessed the brutal expurgation of Judges considered to be anti-land reform by the government.
Up to now Zanu pf government still has this abhorrent penchant of using state institutions to achieve political ends. Such is common among Rick flaire political characters though undesirable.
The Office of the Public Protector is a Constitutional creature and it has the same powers as the office of the Ombudsman in Zimbabwe and other countries.
The Office of the Ombudsman is little known in Zimbabwe and it is not vested with legally binding powers. It can only offer recommendations’and this speaks volumes and ought not to be overlooked.
The Office of the Ombudsman is more of a paper tiger in Zimbabwe and this allow government departments and institutions to work un-monitored thereby creating a breeding ground for corporate governance malfeasance, dereliction of duty thereby reducing State institutions and departments to mere incubators of mediocrity.
When an important office like this is not legislatively empowered to execute its duties and responsibilities, the result will be flagrant disregard of ethics among other fiduciary responsibilities by government departments and institutions.
Acts of omission and commission will be perpetrated with impunity and the end result will not be different from the Enron Scandal, breakdown of everything and total, irrevocable and irretrievable collapse of everything.
The million dollar question is, can South Africa ever emulate such events as seen in Zimbabwe?
No, not a chance, the Con Court ruling is a striking sign that South Africa remains a model for Zimbabwe.