According to the constitution the president was not obliged to appoint a commission of inquiry whenever there were indications of corruption

The president was not obliged to appoint a commission of inquiry, in terms of the Constitution, whenever there were indications of corruption, malfeasance and misfeasance in public procurement, said President Jacob Zuma ’s advocates in submissions to the Constitutional Court.

Mr Zuma is opposing an application by arms deal campaigner Terry Crawford Browne, who wants the court to order the president to appoint a commission of inquiry to investigate the arms deal.

Mr Crawford-Browne said failure by the criminal justice administration to get to grips with corruption allegations aired in Parliament as long ago as September 1999 was reason enough to oblige the president to appoint a commission of inquiry.

However, Mr Zuma’s advocates, led by Marumo Moerane SC, argued that: "The president has a discretion to leave it to other state agencies to utilise appropriate measures to address such allegations. Such measures may include the use of state law enforcement agencies and other state agencies, as in this case, or permitting investigations conducted by such agencies and any other resulting prosecutions, to take their course."

The case would be heard next month.

Mr Moerane said the court could not interfere in the president’s decision not to appoint a commission of inquiry on the basis that he had preferred other measures that were related to the purpose of dealing with alleged corruption in the arms deal procurement process.

Mr Moerane said the president was also not obliged under the constitution to appoint a commission of inquiry. "This empowering section locates the power with the president, but contains no provision that can be construed as being obligatory."

He said the Constitutional Court considered the president’s power to appoint commissions of inquiry in the case of the president of the Republic of SA v South African Rugby Football Union in 2000.

In that case the court confirmed that the power was conferred upon the president alone and it was an original constitutional power which the president exercised as a head of state rather than as head of the executive.

The court in that case also found that the functions of commissions of inquiry were to determine facts and to advise the president through the making of recommendations. "The president is not bound to accept the commission’s factual findings or to follow its recommendations."

Mr Moerane said the means preferred by the president were rationally related to the objective of rooting out corruption in the arms deal procurement process.

"They will unearth such corruption for punishment by the courts if proved. If the corruption suggests a basis for cancelling arms deal contracts, the state will consider and obtain advice as to the appropriate course to follow."

He said in contrast, the president was entirely free to accept or reject any findings and recommendations of a commission of inquiry, including an independent judicial commission of inquiry.

mabuzae@bdfm.co.za

With acknowledgements to Ernest Mabuza and Business Day.

If the Con Court forces Zuma to appoint a Judicial Commission of Enquiry into the Arms Deal, he will just appoint Judge Dr John Hlophe to head the commission.

May Dr Paul Ngobeni.

Maybe Mac Maharaj.

But go, Terry, go..