Gordhan and the Hawks: what the President can do

In the Hawks’ investigation of Finance Minister Pravin Gordhan, President Jacob Zuma is firmly on the Minister’s side.

At least, this is what he says. In a statement released on 25 August, the President expressed ‘his full support and confidence in the Minister of Finance’ and emphasised ‘the fact that the Minister has not been found guilty of any wrongdoing’. He is also aware that the Hawks’ investigation is an extravagant own-goal. He ‘noted the concerns’ of civil society and the ‘negative effect of these matters on our economy’ and the ‘personal pressure on the individuals affected’. All of this is ‘disturbing’. Indeed. Given all of this, one would expect the President to take action. Unfortunately, his hands are constitutionally tied. According to him, the President ‘does not have powers to stop any investigations into any individual/s’ and to do so would be to ‘intervene unconstitutionally’. No wonder the President didn’t feel the need to cancel his trip overseas.

But is this true? Does the President really not have any power to bring this crisis to heel? No - he does, and he should exercise it. The Minister does, after all, enjoy his ‘full support’.

The President’s options
It is correct that the President cannot prevent individual investigations or reverse decisions to prosecute. The Constitution requires that the National Prosecuting Authority (the NPA) exercise its functions ‘without fear, favour or prejudice’.  The Hawks are similarly operationally independent. Section 17B(b)(ii) of the South African Police Service Act enshrines the ‘necessary independence’ of the Hawks. The Constitutional Court has held, in Glenister II (in which the Helen Suzman Foundation was an amicus curiae) and Helen Suzman Foundation that the Constitution itself requires this.

But this is not the whole picture. While the President cannot interfere with specific investigations or prosecutions, he has plenty of power to oversee the Hawks.

First, under section 17DA of the Police Service Act, a two-thirds majority of the National Assembly can remove the head of the Hawks, Lieutenant-General Berning Ntlemeza, on the grounds of misconduct, incapacity or incompetence.  Once the National Assembly begins these proceedings, the Minister of Police, Mr Nathi Nhleko, may provisionally suspend the head of the Hawks immediately.

At best, the allegations against Minister Gordhan rest on insufficient facts and a misunderstanding of the law. This is incompetence. At worst, they are an attempt by the Hawks to capture the Treasury for corrupt elites. This is misconduct. The breathtaking weakness of the Hawks’ case against the Minister has been overwhelmingly established by the press,  civil society  and legal  experts.  The legal grounds to remove Mr Ntlemeza are there.

It is true that it is the National Assembly, not the President, that has the power to remove the head of the Hawks, and it is the Minister of Police that has the power of suspension, not the President. But President Zuma has considerable influence over the ANC caucus in Parliament (and indications are that the Democratic Alliance  and the Economic Freedom Fighters  would only be too happy to help the ANC get the two-thirds majority it needs to remove Mr Ntlemeza). Once the National Assembly has started proceedings, President Zuma can instruct Minister Nhleko to suspend Mr Ntlemeza. If he refuses, the President can fire him.

Even if President Zuma cannot do this (if he cannot corral the necessary super-majority in the National Assembly, for example), he has another route available to him. As the Menzi Simelane case  showed, the courts can set aside a decision to appoint a public servant if that decision was irrational, and the decision to appoint might be irrational if the individual appointed is clearly dishonest. No less than two judges have noted Mr Ntlemeza’s dishonesty. Thus, the President can approach a court to have the decision to appoint Mr Ntlemeza set aside. He doesn’t even have to do this on his own, as such a case is already before both the High Court and the Constitutional Court. It has been instituted by the Helen Suzman Foundation.

Conclusion
When the President says that he has no power to intervene, he is mistaken. The decision to appoint Mr Ntlemeza appears to be irrational. In addition, the campaign against Minister Gordhan reveals that the head of the Hawks is either incompetent or abusing his powers. The persecution of Minister Gordhan poses a grave danger to our economy and our institutions. President Zuma knows this, and he should do something. Fortunately, he can.