Jacob Zuma’s defiance of the state capture commission was “a blatant violation of the foundational constitutional value of accountability, which underpins the rule of law”, the commission’s lawyers said on Friday.
With Zuma saying earlier in the week he would not participate in the commission’s case lodged with the Constitutional Court, the state capture commission nonetheless went ahead and filed its legal argument in its application to compel the former president to abide by summons and come to the commission and answer questions.
In heads of argument, filed on Friday, the commission’s counsel, Tembeka Ngcukaitobi SC, said that, by refusing to participate: “Mr Zuma has again avoided accountability for his conduct.
“He has refused to participate in these proceedings at all, to explain his conduct at the commission. This, we submit, compounds the problem and reinforces the need for this court’s intervention.”
Ngcukaitobi said that the constitutional duty to account included two aspects: a duty to justify one’s conduct and decisions, and a duty to take responsibility for, or be held liable for, the exercise of public power. The point of giving evidence before the state capture commission was to fulfil both those aspects, he said.
The heads of argument then — over eight pages — “highlight” some of the allegations that Zuma had been called on by the commission to address — “and which he has, to date, failed to address on the merits”.
Included in these highlights is a summary of the allegations around the nuclear deal, saying that Zuma is alleged to have initiated and co-ordinated the process to procure 9.6GW of nuclear energy from the Russian Federation “without ensuring the conclusion of prior feasibility studies and finance modelling to ensure affordability, and without ensuring an open and competitive bidding process, in contravention of the Public Finance Management Act”. He is also accused of trying to bind SA to “a substantial financial obligation” under the programme “without any prior vote of expenditure by parliament or budget allocation”.
Nhlanhla Nene and Mcebisi Jonas alleged that Zuma unlawfully sought to pressurise Nene, then the finance minister, to sign a letter of agreement for the proposed nuclear build programme when the National Treasury had advised against the programme and raised concerns over its feasibility and the fiscal implications, said Ngcukaitobi.
It also details allegations of interference in state institutions including the National Prosecuting Authority and the State Security Agency.
“It is apparent from these allegations that Mr Zuma is accused of the most serious abuses of power and breach of his constitutional duties as president,” said Ngcukaitobi. He then detailed the different efforts that had been undertaken by the commission to ensure Zuma’s presence to give evidence — to no avail.
He said that the courts had already recognised the role commissions play in ensuring constitutional accountability. More so this particular commission — because it was mandated by the public protector as remedial action in her State of Capture Report — and also because of its subject matter, tasked with “investigating allegations of state capture, corruption and fraud in the highest echelons of government”.
He said that, given the history of Zuma’s non-compliance “and his repeated avoidance of giving evidence and being examined, even despite undertaking to the commission that he would do so”, the commission had a “well- founded concern that Mr Zuma will continue to avoid to account, unless he is expressly directed by this court to do so”.