Why The Zuma Appeal Bid By IEC Is Ill-Advised and Ill-Fated
Paul Ngobeni - Legal Analyst with Juris Doctor degree from New York University
I have previously exposed the Independent Electoral Commission’s (IEC) bias against former President Zuma and his candidacy. See, DOES THE IEC’S PRONOUNCEMENT ON ZUMA RAISE AN ALARM ABOUT ITS CONSTITUTIONAL COMPETENCE AND INDEPENDENCE? https://www.blogger.com/blog/post/edit/7882783286736481979/3050180726690705023 . True to its track record, the IEC has lodged an urgent and direct appeal to the Constitutional Court relating to the order of the Electoral Court setting aside its decision following the appeal by the uMkhonto Wesizwe party. The IEC believes that taking the case to the Constitutional Court will assist in providing clarity on the interpretation of section 47(1)(e) of the Constitution. This law was at the centre of the case between the uMkhonto Wesizwe (MK) party and the IEC. “Such clarity is important in the present matter because of a live issue but also for future elections. It is furthermore important that such legal clarification is obtained from the highest court in the land which has constitutional-matter jurisdiction. Hence, a direct appeal to the Constitutional Court,” the IEC’s statement reads. But that is actually bizarre justification for urgent appeal – if the objective is merely to seek “clarity” from the apex court why is the IEC compelled to expedite the matter as an “urgent appeal”?
The MK party challenged the interpretation of section 47(1)(e), which sets the conditions under which a convicted citizen may not take public office. But the MK did not end its argument there. It made a cogent and sophisticated argument about the interplay between Sections 165, 84(2) and 47(1)(e ) of South Africa’s constitution. Advocate Dali Mpofu SC argued that Zuma spent only three months in prison after he received a remission of sentence, which rendered his initial sentence of 15 months irrelevant. He also argued that the commission had no jurisdiction to implement section 47 against the former president.
The IEC’s statement explaining the basis of its urgent appeal raises even more suspicions. In explains why it is important for the commission to take the matter to a higher court, the commission “stressed that it was in no way trying to interfere with political matters” even before anyone levelled such accusations against it. A guilty conscience need no accuser! The IEC stated: “The Commission wishes to emphasise that this appeal is not intended to involve itself in the political field of play, it is rather to ensure free and fair elections by ensuring that applicable constitutional provisions relating to elections are clearly understood by all role-players and applied evenly. We therefore wish for the matter to be determined before the date of the election.”
The Electoral Court ruled this week that the MK party’s Jacob Zuma would remain on the parliamentary list, setting aside the commission’s decision to uphold an objection against the former president’s participation. There is a plethora of reasons why the envisaged appeal is likely to end in an ignominious defeat for the IEC.
First, it is well-known that the Electoral Court has not yet issued the full judgment to outline the reasoning behind the decision. Ironically, the IEC issued a statement urging the court to release its judgment to reveal how it made its decision but is seemingly unwilling to await the court’s issuance of the judgment. The same IEC which claims that “clarity is important in the present matter because of a live issue but also for future elections” is unwilling to await the issuance of the very judgment it is appealing against.
Second, the IEC will fail on its claim that the matter is urgent. Ordinarily, the Constitutional Court is not suited to hear urgent matters, because of its composition and functions. The Court consists of eleven judges, who sit together en banc. Every matter must be heard by at least eight judges. Without a glimpse into the reasons advanced by the Electoral Court for its judgment, the IEC is in no position to articulate any plausible basis for urgency. The record is devoid of anything that supports IEC’s claimed urgency. It is clear that this matter is indeed not one of urgency and that it is not in the interests of justice that it be dealt with expeditiously. Even in the unlikely event that President Zuma is declared to be unqualified for election to Parliament after the elections his inclusion on the MK list for now does not warrant a court’s urgent consideration of that issue at this stage.
Third, the Constitutional Court is unlikely to have a quorum in this matter as the majority of judges have a conflict of interest and are disqualified from presiding over the matter of President Zuma or interpreting their own judgment which sent him to prison without the benefit of a trial. In that regard, the Constitutional Court stated in Bernert v ABSA Bank Limited 2011 (3) SA 92 (CC) at paragraph [22] that the Concourt “as the ultimate guardian of the Constitution, has the duty to express the applicable law, in order to enhance certainty amongst judicial officers, litigants and legal representatives and, thereby, to contribute to public confidence in the administration of justice”. This is however said subject to the proviso that no person has a right of appeal to the Constitutional Court. It is not irrelevant, that the IEC, well knowing that six of the eleven Judges (Chief Justice Zondo as Complainant, Madlanga J, Majiedt J, Mhlantla J, Tshiqi J and Theron J) were participants in the judgment which resulted in Zuma’s incarceration, approached the Court in its application for leave to appeal. This clearly cries out for a sua sponte recusal by the said judges. Clearly it can be assumed that Mr. Zuma would have a reasonable apprehension that the same judges who sent him to jail will be biased in adjudicating this application. In this respect the presumption of impartiality of the Judges, who as judicial offices, are required by the Constitution to apply the Constitution and the law impartially and without fear, favour or prejudice, must not be given any weight in determining whether there is in fact a need for the majority of the Judges presiding over the matter, to recuse themselves. The judges admitted in the original Zuma judgment that they took umbrage to what they perceived as personal insults directed at them by Zuma and imposed on him a prison sentence far in excess of sentences normally imposed in contempt of court cases. Moreover, Section 47 (e) of the Constitution states that: “(e) anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, … but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired.” But we all know that Zuma was never given any appeal rights as the Constitutional Court acted as the court of first and last instance. If the Constitution says explicitly that “no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined” what happens where a party is sentenced by the Concourt against which no appeal rights exist? Can the same judges who imprisoned Zuma now decide that their abuse of judicial power to deny him these fundamental rights was harmless or should be excused?
It is undeniable that at least six of the eleven members of the Court should consider themselves disqualified from determining the merits, with the result that only four Judges are available, there will not be compliance with section 167(2) of the Constitution which provides that a matter before the Constitutional Court must be heard by at least eight Judges. Unless those positions can be filled by Acting Judges, or if the doctrine of necessity is invoked, the Constitutional Court cannot determine the merits of the dispute between the parties, with the result that the judgment in the Electoral Court stands. Justice Zondo’s role as both a litigant and member and supervisor of the Court that sentenced Mr. Zuma to a determinate prison term have left a stench on the judiciary that may not be sanitized for decades to come. In short, the Concourt has recently raised a similar recusal issue in the matter involving Judge President Hlophe.
By way of digression I must point out that It is also significant that the Concourt’s judgment sentencing Zuma was not unanimous. The dissenting minority judgment of Theron J(Jafta J concurring), pointed out that the majority was “creating precedent to punish Mr Zuma alone, Second judgment at [191].” That suggest invidious discriminatory treatment and targeting of Mr. Zuma by the majority judges. The minority judgment further asserted that:
[191] The extraordinary features of this matter are undeniable: a former President has very publicly refused to comply with an order of our country’s apex court, which was granted in order to secure his attendance at a commission of inquiry…The main judgment, by its own admission, has pushed the bounds of our law of contempt in order to meet these exceptional circumstances. The danger of this approach is foreshadowed in the well-known aphorism quoted at the outset of this judgment. It has led to the creation of bad law. As I demonstrate, the law is not just bad; it is unconstitutional.
The minority justices further reasoned that:
(b) It is not reasonable and justifiable under the Constitution for a court to make an order of unsuspended committal in civil contempt proceedings, where the successful litigant has no interest in compelling compliance with a court order or where compliance is no longer possible. Such an order, when granted in civil proceedings, is unconstitutional to the extent that it limits sections 12 and 35(3) of the Constitution.
(c) Where relief is sought in civil contempt proceedings which is not aimed at enforcing compliance with a court order, the ordinary mechanisms of the criminal justice system should be employed to protect the dignity of the Court.
(d) In the event that a private litigant approaches a civil court for a punitive order which is not allied with the remedial purpose of coercing compliance with the original court order, the proper approach is to refer the matter to the DPP. Should the same litigant pray for coercive relief, it is within the power of the Court to adjudicate that claim and, in doing so, make an order of committal which vindicates the public interest and creates an incentive for the contemnor to comply with the original order.
Justice Theron opined that she “…would have made a coercive order of suspended committal, conditional upon Mr Zuma complying with this Court’s order. But because the Commission’s lifespan is at its end, I would order that the matter be referred to the DPP for a decision on whether to prosecute Mr Zuma for contempt of court. Should the DPP refuse to prosecute, it would be open to the Commission to prosecute Mr Zuma privately in accordance with section 8 of the Criminal Procedure Act.” The IEC and its lawyers should be acutely aware of these legal issues.
Fourth, there is very serious doubt concerning whether the Constitutional Court has jurisdiction to consider the IEC’s application for leave to appeal against a ruling of the Electoral Court. Section 96(1) of the Electoral Act explicitly provides: “The Electoral Court has final jurisdiction in respect of all electoral disputes and complaints about infringements of the Code, and no decision or order of the Electoral Court is subject to appeal or review.” In Liberal Party v The Electoral Commission and Others [2004] ZACC 1; 2004 (8) BCLR 810 (CC) at para 15 the effect of section 96 on the Concourt’s jurisdiction was left undetermined. O’Regan J (for the majority of the Court) refrained from considering the effect of section 96(1) of the Electoral Act on the jurisdiction of the Court in relation to disputes arising from national or provincial elections. That matter dealt with local government elections to which section 96 is expressly not applicable. She held that “[l]egislation should not be presumed to have intended to oust this Court’s jurisdiction when it does not expressly state as such”, and concluded that section 96(1) does not oust this Court’s jurisdiction in disputes arising from municipal elections.
The case, African National Congress v Chief Electoral Officer of the Independent Electoral Commission (CCT 45/09) [2009] ZACC 13; 2009 (10) BCLR 971 (CC) ; 2010 (5) SA 487 (CC) (3 June 2009) involved the exclusion of someone from the ANC’s list of candidates because he was not registered to vote. While the factual basis of the exclusion was shown to be a mistake, the significance of the case lies in the preliminary argument that the Constitutional Court had no jurisdiction to hear the appeal, since the Electoral Act designates the Electoral Court as having ‘final jurisdiction in respect of all electoral disputes and complaints about infringements of the Code, and no decision or order of the Electoral Court is subject to appeal or review’. Refusing to accept the ouster of its jurisdiction, the Constitutional Court, in a per curium opinion, argued that, while the Electoral Act clearly designated the Electoral Court as the court of last resort for all electoral matters, this ouster could only be constitutional if it was read as not applying ‘where the dispute itself concerns a constitutional matter within the jurisdiction of this Court’. The Court stated the following:
7 The question we must consider now is whether section 96(1) ousts the jurisdiction of this Court in this matter. Section 96(1) must be interpreted in a manner that is consistent with the Constitution. Indeed, section 2 of the Electoral Act provides that any person interpreting or applying the Act must do so in a manner that “gives effect to the constitutional . . . guarantees”.8 It is clear that were section 96(1) to be interpreted to oust this Court’s jurisdiction to consider constitutional matters, it would be inconsistent with section 167(3)(a) of the Constitution which provides that this Court is the highest court in all constitutional matters. Accordingly, section 96(1) should in the light of section 2 of the Electoral Act be read in a manner consistent with section 167(3)(a). This can be achieved by reading section 96(1) to mean that no appeal or review lies against a decision of the Electoral Court concerning an electoral dispute or a complaint about an infringement of the Code, save where the dispute itself concerns a constitutional matter within the jurisdiction of this Court.
8. In this case, the applicant argued that Mr Maluleka had a constitutional right in terms of section 19(3)(b) of the Constitution to stand for election to the National Assembly and that the effect of the decision of the Electoral Court constituted an unjustifiable infringement of that right. Clearly this case raises a constitutional matter within the jurisdiction of this Court, a jurisdiction which section 96(1) of the Electoral Act does not oust.
9 Given that the case raises a constitutional matter, and given the prospects of success as shall emerge later in this judgment, it was clearly in the interests of justice for this Court to hear the matter and to grant leave to appeal.
It is significant that the IEC is not arguing that Zuma’s constitutional rights “in terms of section 19(3)(b) of the Constitution to stand for election to the National Assembly” were violated. It has not argued that the effect of the decision of the Electoral Court constituted an unjustifiable infringement of that right. Rather it merely seeks “clarity” on its dispute with MK and the Electoral Court. The IEC has failed to articulate a clear basis for evading the principle that the Electoral Court has ‘final jurisdiction in respect of all electoral disputes and complaints about infringements of the Code, and no decision or order of the Electoral Court is subject to appeal or review’.
Fifth, the IEC is labouring under a profound confusion regarding the powers allocated to the judiciary and the President respectively under our constitutional scheme. Section 165(3) provides that ‘no person or organ of state may interfere with the functioning of the courts’, and section 165(5) provides that any order issued by a court ‘binds all persons to whom and organs of state to which it applies’. But there is allowable “interference” for the President under our constitution. Section 84 (2) of the same Constitution states that the President is both head of state and head of the national executive and provides that the President is responsible for:
“(a) assenting to and signing Bills; …
(j) pardoning or reprieving offenders and remitting any fines, penalties or forfeitures; ...”
There is no contradiction between the provisions of the Constitution allocating judicial powers to the judiciary and those allocating powers to the President. Consider in this regard the profound statement of the Constitutional Court in Law Society of South Africa and Others v President of the Republic of South Africa and Others (CCT67/18) [2018] ZACC 51; 2019 (3) BCLR 329 (CC); 2019 (3) SA 30 (CC) (11 December 2018) where the Court observed:
[2] More importantly, the effective leadership or stewardship of the State can never be undertaken by a weakened or lame duck President. The magnitude of presidential responsibilities demands that the incumbent be clothed with sufficient governance-enabling authority to be the critical difference-maker and transformation-agent that national aspirations demand of the office.[2] The President should, therefore, not be unnecessarily constrained in the exercise of constitutional powers.
The granting of pardon or remission of sentences may under certain circumstances signal the effective leadership or stewardship of the State by our President. It may be a clear and unequivocal signal that our President is clothed with sufficient governance-enabling authority to be the critical difference-maker and transformation-agent that national aspirations demand of the office, especially in a moment of national crisis.
In President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 11; 2000 (1) SA 1 (CC); 1999 (7) BCLR 725 (CC) the Constitutional Court engaged with the basis on which the courts may review the exercise of presidential powers and affirmed its judgment in President of the Republic of South Africa and Another v Hugo. The Court gave historical content to presidential pardons at para 144 and explained that such powers originated from the royal prerogative and were enjoyed by the Head of State:
[144]. In President of the Republic of South Africa and Another v Hugo,11[1] this Court held that the powers conferred upon the President by section 82(1) of the interim Constitution, which are similar to those conferred by section 84(2) of the 1996 Constitution, were powers which historically originated from the royal prerogative and were enjoyed by the head of state. In neither the interim Constitution nor the 1996 Constitution, however, is there any reference to the prerogative. The powers conferred are limited to those expressly listed. They are conferred upon the President as head of state, rather than as head of the national executive. This conclusion is suggested not only by the historical antecedents of these powers, but also by the provision in section 84(2)(e) which empowers the President to make appointments required by the Constitution or legislation other than those appointments he must make as head of the national executive. The clear implication is that those appointments made under section 84(2) are made as head of state.
[145] All of the powers conferred by section 84(2) are original constitutional powers. They are concerned with matters entrusted to the head of state,
The judgment, President of the Republic of South Africa v Hugo [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC) (Hugo) dealt with the President’s decision to remit the sentences of a special category of prisoners. There, the majority of the Court at paras 45-6 held that there were at least two situations in which the power to grant pardons or remit sentences may be important. First, to correct a mistaken conviction and enhance justice within the legal system, and second, to provide an opportunity to release convicted persons when it is in the public interest, as in Hugo, where the exercise of the power to pardon was an act of mercy at a time of great historical significance. See also President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 11; 2000 (1) SA 1 (CC); 1999 (7) BCLR 725 (CC) where this Court engaged with the basis on which the courts may review the exercise of presidential powers.
So contrary to the IEC’s mistaken assumption, the historical content to presidential pardons or remission of sentences shows that such powers originated from the royal prerogative and were enjoyed by the Head of State for centuries. Currently, all powers conferred by section 84(2) are original constitutional powers. See also Minister for Justice and Constitutional Development v Chonco [2009] ZACC 25; 2010 (4) SA 82 (CC); 2010 (2) BCLR 140 (CC) (Chonco) at para 16 where the Concourt considered the relationship between the powers and functions of the President as Head of State, on the one hand, and those that are entrusted to the Executive, on the other, as well as the obligations that accrue to each in terms of section 84(2)(j). See further Albutt v Centre for the Study of Violence and Reconciliation [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (5) BCLR 391 (CC) where the Concourt determined the scope of the President’s power to grant pardons to people who were convicted of offences that were committed with a political motive as part of the special dispensation process. Such powers can legitimately be used in the interest national unity and national reconciliation. They can also be used to mitigate the harshness of sentences imposed by the judiciary.
The IEC sought to propagate the myth that the separation of powers doctrine is violated when the President uses his original Section 84 constitutional powers to pardon persons or remit their sentences. So long as the President’s exercise of the pardon power stays within the confines of the law, he enjoys broad and unbridled powers to grant a pardon to deserving individual citizens. The US Supreme Court has held that pardon “…extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” Brown v. Walker, 161 U.S. 591, 601–02 (1896) (internal citations and quotations omitted). The US Supreme Court observed in Nixon v. United States that “the granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is ‘an executive action that mitigates or sets aside punishment for a crime.’” 506 U.S. 224, 232 (1993) (quoting Black’s Law Dictionary 1113 (6th ed. 1990)).
And finally, the IEC and its lawyers need to develop a proper understanding of the “remission’ or pardon phenomenon in our constitutional scheme. Helpful examples can be gleaned from Indian Supreme Court jurisprudence. In a recent case, Rajo @ Rajwa@ Rajendra Mandal, Write Petition (Criminal) No(s). 252 OF 2023 the Indian Supreme Court stated:
9. Sentencing is a judicial exercise of power. The act thereafter of executing the sentence awarded, however, is a purely executive function – which includes the grant of remission, commutation, pardon, reprieves, or suspension of sentence. See Gopal Vinayak Godse v. State of Maharashtra [1961] 3 SCR 440; Maru Ram v. Union of India [1981] 1 SCR 1196; Sarat Chandra Rabha v. Khagendranath Nath [1961] 2 SCR 133; Kehar Singh v. Union of India [1988] Supp. 3 SCR 1102. This executive power is traceable to Article 72 and 161 of the Constitution of India, by which the President of India, and Governor of the State, respectively, are empowered to grant pardons and to suspend, remit or commute sentences in certain cases. Whilst the statutory (under Section 432 CrPC) and constitutional (under Articles 72 and 161 of the Constitution) powers are distinct the former limited power, is still an imprint of the latter (much wider power), and must be understood as such and placed in this context. This framework of executive power and how it is to be exercised, is lucidly explained, in the judgment of State of Haryana v. Jagdish [2010] 3 SCR 716:
27. Nevertheless we may point out that the power of the sovereign to grant remission is within its exclusive domain and it is for this reason that our Constitution makers went on to incorporate the provisions of Article 72 and Article 161 of the Constitution of India. This responsibility was cast upon the executive through a constitutional mandate to ensure that some public purpose may require fulfilment by grant of remission in appropriate cases. This power was never intended to be used or utilised by the executive as an unbridled power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded and which does not, in any way, wipe out the conviction. It is a power which the sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overruled but the convict gets benefit of a liberalised policy of State pardon. However, the exercise of such power under Article
161 of the Constitution or under Section 433-A CrPC may have a different flavour in the statutory provisions, as short-sentencing policy brings about a mere reduction in the period of imprisonment whereas an act of clemency under Article 161 of the Constitution commutes the sentence itself.”
As the Indian Supreme Court sagaciously observed, sentencing is a judicial exercise of power. The act thereafter of executing the sentence awarded, however, is a purely executive function – which includes the grant of remission, commutation, pardon, reprieves, or suspension of sentence. Each repository of power under our Constitution has separate function in that the judiciary passes sentence but the execution of the same sentence is exclusively in the hands of the executive. It is an exercise in idiocy to claim that a separation of powers principle is violated if the executive chooses to exercise the constitutional power to remit a sentence of a prisoner in Mr. Zuma’s position. As the Indian court recognizes, “ the power of the sovereign to grant remission is within its exclusive domain” and this means that a Court may not invalidate such powers simply because it disagrees with the grant of a remission to Zuma. It is a “power which the sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overruled but the convict gets benefit of a liberalised policy of State pardon.” The IEC appeal is a political gimmick with no prospects of success.
