By Sethakgi MaComms Kgomo
In a democratic country where the Rule of Law and the Supremacy of the Constitution loom large and supreme, one would reasonably expect institutions created to promote and protect a constitutional democracy to have an equal “pulse” and enjoy the same respect from all and sundry.
It is not long ago that some prominent members of our society, some political parties, civic movements, religious groups and the NGO sector rallied behind an action (on the Nkandla matter) to “protect” the Public Protector (“PP”), which culminated in a judicial action in our upper courts confirming the constitutional powers of the office of the PP, one of the so-named Chapter 9 institutions.
Today we know that the “findings” of the PP are far-reaching and not just recommendations, but “binding” on all persons directly and/or specifically affected by those findings. This “binding” effect shall endure unless and until reviewed and set aside by a competent court.
Strikingly however, the law enforcement agency of the state created by an Act of Parliament – the “HAWKS” – is not being treated with the same respect as was the case with the PP. There is an apparently well orchestrated and deliberate attack on the HAWKS, in the wake of its investigations which include Finance Minister Pravin Gordhan. From my perspective, the point is not whether a senior minister was being investigated among other persons on a number of allegations, with a potential for possible prosecution, but it is an impious attack on the HAWKS by those individuals, organisations, religious groups and NGOs professing to be acting in the best interest of the country’s constitutional values, including promoting and protecting institutions of the state, empowered to enforce the law.
The HAWKS are but one of those institutions so created by an Act of Parliament to enforce the law. Why are the HAWKS not being given the same affection, protection and support in their latest investigations? Is it because it is investigating the finance minister among other persons? What message do these blistering attacks send about our commitment to upholding the rule of law in this country? In a country like ours where courts have the power to review any action by an organ of state, one would wonder why the interested parties (who include those who studied and are practicing law) shouldn’t pursue the court route to challenge the lawfulness of administrative actions taken by the HAWKS on these recent investigations?
It remains astonishing that instead of seeking judicial clarity of the alleged abuse of power by the HAWKS, its attackers appear aptly participating in public attacks in order to silence the HAWKS.
I believe the HAWKS are impervious to be too terrified and yielding to these attacks. The fact that these attackers are not advancing legally sound arguments on why the investigations against the finance minister should be discontinued, their attitude creates an impression that a finance minister ought to be nefariously elevated above the law, as an act of appeasement to a seismically destructive force called “the markets”. If this is what can be inferred from the actions of these parties, then we are living in a country where “equality before the law” will remain an illusion. Consequently my analysis and conclusion is that a public attack on the HAWKS constitutes a naked hypocrisy and opportunism on those purportedly professing their commitment to the foundational values of South Africa’s constitutional democracy.
Sethakgi MaComms Kgomo is an independent Political Analyst