Protect the constitution at all costs, Judge Cameron urges

NIA MAGOULIANITI-MCGREGOR

Before them stood a defender of human rights saluted by former President Nelson Mandela as “one of South Africa’s new heroes”; a gay rights activist; the epitome of a principled, learned man; a Rhodes scholar; and a legal celebrity of sorts, but also, a charming, funny narrator who had the crowd eating out of the palm of his hands.

“I want to tell you a story,” said Cameron.

“In Harare in November 2017, a monstrous dictator called Robert Mugabe resigned. Why? Because there were tanks on his front lawn. There were soldiers throughout Harare. His resignation statement was dictated to him. It was accepted as the military removal of the power of an autocrat.”

Fast forward to South Africa about 10 weeks later, said Cameron. “It’s 15 February 2018, and South African President Jacob Zuma resigns. Where are the tanks? Where are the soldiers? Is there any talk of tanks or soldiers? No.”

He resigned, Cameron told the audience, for “a complex mix of factors” including the fact that his favoured candidate, Nkosazana Dlamini-Zuma, was not elected six weeks before at the African National Congress’ elective conference at Nasrec.

But also, said Cameron, because “certain legal impediments had been placed very squarely in his path”. He named four cases specifically.

Strike 1

The first case, he said, concerned the “extraordinary” report of then Public Protector, Advocate Thuli Madonsela, released just before the elections five years ago. In this report, she found that Zuma had “misappropriated” money to upgrade his private homestead at Nkandla.

“The Democratic Alliance sent out an SMS within days of Madonsela’s report being released saying the ‘public protector report shows how Zuma stole your money to build his private home at Nkandla’. The ANC quickly sought an interdict claiming that Madonsela never actually used the word ‘stole’.

“The interdict was granted, but was brought to us by the DA on appeal. We reversed that judgement, saying that the public protector had found misappropriation, and attributed it to President Zuma. The dictionary meaning of misappropriation is to take unlawfully, and another way of saying that is to say ‘steal’.”

Cameron, along with a few of his colleagues, wrote a joint judgement saying that freedom of speech, especially before an election, was paramount, and what the DA had reported in its SMS was well within permissible parameters.

Strike 2

The next legal challenge, said Cameron, came after Zuma refused to repay any “misappropriated” money as instructed to by the public protector, saying, “The public protector is not a court. I’m not paying.” A special parliamentary committee also resolved that Zuma did not have to repay the Nkandla money.

“The case was then taken to the Constitutional Court,” said Cameron. “These were the issues: does the public protector have serious powers and, if so, must Mr Zuma obey the order to repay part of the money?”

He said that on 31 March 2016, Chief Justice Mogoeng Mogoeng gave a unanimous, “extraordinary” judgement on behalf of the whole court which was televised on all major TV networks. “Mogoeng ruled that the public protector report was binding, and unless it was set aside, it must be obeyed. Zuma had to pay part of the money. Which he did.

“Chief Justice Mogoeng’s judgement was a vital lecture on constitutionalism, about civic responsibility, about honesty, integrity and leadership, and it resonated with the country so much that everyone thought Mr Zuma was going to resign,” said Cameron.

“Of course, he didn’t resign.”

Strike 3

“Six days later,” said Cameron, “DA leader Mmusi Maimane declared that President Zuma had been found to have committed a violation of the constitution, and wanted to have him removed under Section 89 of the Constitution. Speaker Baleka Mbete agreed. The vote was overwhelmingly in favour of Zuma.’

Impeachment under Section 89 of the constitution had been rejected, Cameron said, so Maimane then asked to bring an ordinary motion of no confidence against the president. The caveat: it must be via a secret ballot. “Mbete made some good arguments about why the ballot could not be secret, but the matter went before the Constitutional Court.”

It led to another unanimous judgement: The speaker did have the power to hold a secret ballot if she chose to do so.

The speaker allowed a secret ballot, and Zuma survived, said Cameron, but this time, instead of an overwhelming victory, 30 members of his party voted to remove him.

Strike 4

In November 2017, said Cameron, a few opposition parties approached the Constitutional Court asserting that the speaker “did not deal properly with the impeachment under Section 89”.

Impeachment is different to a no-confidence vote, said Cameron. “It’s a solemn act of removal and based on objectively verifiable grounds.”

He said the opposition also claimed that parliament had failed to hold Zuma to account over the Nkandla matter, and that Mbete had a constitutional obligation to put measures in place to ensure that parliament held Zuma accountable.

“On 29 December 2017, shortly after the Nasrec conference, we delivered our judgement: the impeachment undertaking required a process including possible cross examination of the president.” Cameron said within a week of the judgement, parliament set about convening a committee to set up a process to hold Zuma accountable.

Zuma, “a highly intelligent politician – underestimate him at your peril”, realised his options were severely limited by these four court judgements, and resigned on Thursday, 15 February 2018.

“It is this that distinguishes us from Zimbabwe,” said Cameron. “The constitution is supreme. Parliament is not supreme. The president is not supreme.”

Describing President Cyril Ramaphosa as a “man of purpose and integrity, and enormously accomplished, also not to be underestimated”, Cameron, nevertheless, said changing the constitution with regards to the expropriation of land without compensation was an area of grave uncertainty.

“But,” he said, “the issue of land isn’t only a practical or functional issue, it’s an emotional issue and I think when President Ramaphosa supported expropriation without compensation, he was acknowledging the emotional potency of the issue.”

So, how to protect this “extraordinary” constitution? “By involvement in civil society organisations, activist organisations, or by donating small amounts of money to them. Get involved in political rallies, create an activist organisation of your own. Vote. We have no excuse for passivity,” Cameron said.

“The stronger civil society is – remember the marches to the Union Buildings – the easier it becomes to defend our constitution.

“Protect the constitution, it’s precious,” reiterated Cameron. He didn’t say, “… and it will protect you,” but his meaning was clear.