Gupta scandal points to flaw in the constitution

SOUTH Africa’s acclaimed constitution has a huge hole.

This became apparent when a Gupta plane landed at Waterkloof Air Force Base in violation of aviation, military, customs, immigration, executive regulations and the constitution itself.

The whole Gupta saga has President Jacob Zuma’s name written all over it.

The ongoing investigations, the usefulness of which ironically and entirely depend on him, are unlikely to finger Zuma.

We know he is either circumstantially or directly guilty.

Zuma and his family are beneficiaries of the strange generosity of the Guptas.

The Guptas have, in turn, received favourable treatment by state agencies. The reckless audacity with which the Guptas relate to our senior state officials – the president, ministers, and now officials and members of the National Defence Force – is a result of Zuma’s conduct.

They bankroll a bond for one of his wives, have business dealings with his children, secure undeserving revenues from the state and get favourable treatment during Zuma’s state visits.

Their closeness to the president is not in dispute. State officials and ministers know it. And who would want to get in the way of the president’s personal friends and risk losing a promotion or ministerial job?

It is logical for state officials to shiver when the Guptas call. Zuma and the Guptas are, in the eyes of ministers, civil servants and generals, conjoined twins.

And this is the man who, in terms of his oath of office – the contract between him and citizens – has vowed to uphold the rule of law.

The constitution also commands him to defend and respect it. He is expected to promote national unity.

The executive authority of the Republic is vested in him.

He is also the commander-in- chief of the armed forces.

Good as the oath sounds when it is recited, and attractive as the job description is when the incumbent begins to taste power, the downside is that these are not supported by requirements of character and ability.

And therein lies the problem. The constitution contains responsibilities, undertakings and impeachment processes and leaves a hole in-between. There are no set standards, capabilities and qualification for the person designated to be the national taskmaster.

Although chapter 5 of the constitution spells out the daunting tasks of the president, it does not set out the means required for such a person to perform those tasks.

This gives political parties a free rein. Any popular party that allows its standards to be breached for a potentially unethical leader to seize power can inevitably install such a leader as head of the Republic.

There are only three narrow criteria required for any person to become president.

Firstly, the person must be a sworn in member of the National Assembly. To be an MP, one needs to be on the list of a successful political party represented in parliament after an election.

Secondly, anyone can be an MP unless they are convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine.

Thirdly, the president must be elected by the National Assembly. Other than the qualifications that apply to MPs, there is no additional requirement for a president.

Zuma’s personal circumstances, capability and conduct are such that he is unable to perform presidential tasks and honour his oath of office.

But his rise to power was constitutional – bar the mysterious spy tapes. The constitution must be amended to set out requirements that are in line with heavy presidential tasks.

In the short term, we must pay our president according to his needs in exchange for complete transparency about his finances.

He and his family should be barred from taking gifts from foreigners.

In that way we can wean him from the disrespectful influence of foreigners and mitigate future breaches, which may be far more disastrous than the embarrassment caused by the Guptas.

Mpumelelo Mkhabela is the editor of the Sowetan