With the ANC machinery in full swing to damage control by any means necessary, the party’s caucus in Parliament at its media briefing on Wednesday decided to hauled out two Constitutional Court judgments citing former presidents Thabo Mbeki and Nelson Mandela. That’s proof, according to the ANC parliamentary caucus on Wednesday, that “President Jacob Zuma is not the first president to be found by the apex court to have acted inconsistently with the Constitution… In these cases the Constitutional Court has recognised that the president can violate the Constitution despite acting in good faith and not to the degree stipulated in Section 89 (the constitutional provision for removal from office).”

The snag is that neither case deals with a president’s constitutional duty enshrined in Section 83(b) to “uphold, defend and respect the Constitution”. Nothing but political opportunism and legal advice bent to the demands of political machinations can even begin to explain linking these cases to a finding Zuma failed in his duty to the Constitution over the public protector’s binding finding that he must repay a reasonable percentage of the costs of the nonsecurity upgrades constructed as part of the R215-million security upgrades, projected to cost R246-million upon completion, at his rural homestead. The less said about the presidency’s sophistry that behaving inconsistently with the Constitution did not amount to a violation – notwithstanding the breach of South Africa’s supreme law – the better.

These two Constitutional Court cases from 2010 and 2000 dealt to varying degrees with the exercise of public executive and administrative power – the special pardon dispensation for those convicted of politically-motivated crimes in Mbeki’s case, and whether courts may review the president signing laws onto the statute books in Mandela’s case.

In Mbeki’s case (CCT54/09), the court considered the Promotion of Administrative Justice Act (Paja) and Section 83(c) of the Constitution, which states the president “promotes the unity of the nation”. The court ordered that nongovernmental organisations, which wanted victims to be part of the special pardons dispensation, had leave to appeal against an earlier High Court decision to refuse this. And the president was ordered to pay costs.

In Mandela’s case (CCT31/99), the president himself and the health minister approached the court after the medicines regulatory system became unworkable when proclamations were published under the 1998 Medicines and Medical Devices Regulatory Act signed into law by the president. They acted “promptly” in approaching the court and “there is nothing to suggest that any legitimate interest of any member of the public has been prejudiced by the order made by the full bench”, the judges said. Parliament was not in session due to the pending 1999 elections and fixing the law would have meant a recall of Parliament at great cost to correct the decision.

That’s it. Finish and klaar.

Where the ANC gets its legal advice from is unclear – but it is a narrow, technicist approach that betrays the spirit of the Constitution and its founding provisions of “a multiparty system of democratic government to ensure accountability, responsiveness and openness”.

However, in the game of politics all is fair game. And it will be politics, specifically ANC politics, currently dominated by those who owe fealty to Zuma, that will determine whether he goes or not. This requires verbal acrobatics over the scathing Constitutional Court Nkandla judgment amid the groundswell of calls for Zuma to step down from within the ANC and outside such as churches and civil society organisations. In a command and control move the ANC wants to shut down, particularly, these calls from ANC stalwarts and veterans, ordinary members (including former Cabinet ministers alongside concerns raised by uMkhonto we Sizwe commissars and commanders). The self-proclaimed leader of society says it cannot conduct its affairs on the basis of public sentiment expressed in media reports and open letters – those dissatisfied must come to its party offices to be heard.

This is part of the process of closing ranks in the ANC veneration of unity above all. So is the use of ANC numbers in the National Assembly to vote down Tuesday’s DA motion to remove Zuma from office. The debate was scheduled at lightning speed following high-level meetings and presidential apology for the confusion and frustration caused in the Nkandla saga following the Constitutional Court judgment.

“We are convinced… we voted correctly. We could not have voted any otherwise,” said new ANC Chief Whip Jackson Mthembu. “We still have to find a party that would be galvanised by opposition parties to vote its leader out of presidential office.”

Not commenting on the rare show of opposition unity, he focused on the DA motion as “inconsistent with both the Constitutional Court judgment and Section 89 of the Constitution”.

Because the Constitutional Court did not expressly state the National Assembly must start proceedings against Zuma under Section 89, there’s no need for that. And because the Constitutional Court did not explicitly say there was a serious violation, one of the reasons for removal from presidential office, there was no reason for the DA to bring such a motion. “The Constitutional Court did not direct Parliament to remove the president,” said Mthembu.

The irony seems lost on the ANC that if the judges had done precisely that what the party is calling for, the court would have strayed across the lines of separation of powers the Zuma’s ANC administration so strenuously underscores.

Against such verbal somersaults, accompanied by the invocation of Christianity and its view one must forgive to be ultimately forgiven, the ANC’s welcoming of the Constitutional Court judgment is hollow at best. Addressing the nation, Zuma’s statement, “I never knowingly or deliberately set out to violate the Constitution, which is the supreme law of the Republic”, set the tone of what was to unfold including, but no doubt not ending, with Tuesday’s impeachment motion. The National Assembly, and the ANC in Parliament, says it has done nothing wrong, except that when it disagreed with the public protector it should have gone to court.

Questions remain. Five months after the March 2014 Public Protector finding that Zuma had “unduly” benefitted and must repay a “reasonable percentage” of the nonsecurity upgrades like the swimming pool, cattle kraal, chicken run, amphitheatre and visitors’ centre, the president told Parliament he had asked his police minister to determine whether any repayments were due. The National Assembly accepted that despite its constitutional obligation to oversee and hold to account the executive, Police Minister Nkosinathi Nhleko absolved the president from any liability, and the National Assembly constructed the terms of references of its third Nkandla ad hoc committee around this – and concurred in late 2015.

In a pondering moment Mthembu said the ANC has to reflect on whether it abrogated its duty of holding the executive to account because its MPs were “blind-spotted” because they come from the same political party as ministers and the president. But that’s a process, he added.

And processes can be used to stall action on the real issue. Witness the ANC process to investigate in-house the influence of the Guptas, which after years of rumours, was publicly confirmed last month.

Like processes, verbal acrobatics are a politician’s tool. With the local government election now set for 3 August, the ANC is under pressure to close the book on the Nkandla scandal and the highest court of the country has found its president acted against his oath of office and constitutional duty to uphold, respect and defend the Constitution. If that means cherry-picking the law, and the Constitution, the past few days indicate the governing party is willing to do so. But who will buy it? DM

Photo: South African President Jacob Zuma (R) before his sate of the nation address in parliament Cape Town, South Africa, 11 February 2016. EPA/SCHALK VAN ZUYDAM / POOL