South Africa

South Africa

The ConCourt has ruled on Nkandla: What Now?

The ConCourt has ruled on Nkandla: What Now?

The Constitutional Court Nkandla judgment left Parliament no wiggle room to even try to spin its failure to execute its constitutional duty of overseeing and holding the executive to account. “The National Assembly’s resolution based on the (police) minister’s findings exonerating the president from liability is inconsistent with the Constitution and unlawful,” said the seminal and unanimous judgment delivered by Chief Justice Mogoeng Mogoeng. Parliament responded with a terse 50-word statement, saying it respected the ruling and “will abide accordingly”. What exactly that means is unclear, but the stage is being set at Parliament for another round in the Nkandla debacle as the DA announced it has requested a motion for President Jacob Zuma’s removal from office, while the Economic Freedom Fighters (EFF) called on Parliament to do the right thing. By MARIANNE MERTEN.

In the game of numbers that Parliament has perfected, it remains an unequivocal fact that the ANC holds the majority of seats. So any efforts by opposition parties, even if they were to form a united front, will flounder unless the ANC national executive committee (NEC) decides first on action against Zuma, and second, to take such action in Parliament. It did not do so in September 2008 when the ANC NEC, the highest decision-making structure between the party’s five-yearly conferences, recalled then president Thabo Mbeki, who resigned. Still, opposition calls for Zuma’s dignified exit by resignation, or for the ANC to recall him, were loud and clear following Thursday’s judgment.

There was never any chance the Constitutional Court would make a finding on the president’s future. The Constitution in Section 89(1) clearly states that only the National Assembly may remove a president by a resolution supported by at least two-thirds of members, or 267 of the 400 MPs. There are three grounds: a serious violation of the Constitution or the law, serious misconduct, or inability to perform the functions of office.

But the Constitutional Court ruled that the president violated the Constitution by failing to uphold, defend and respect the supreme law of South Africa. In line with Public Protector Thuli Madonsela’s “Secure in Comfort” report – her office being a constitutionally-established institution to support democracy – Zuma was bound to repay a reasonable percentage of the costs of the identified nonsecurity features at his Nkandla rural homestead. The protector’s remedial actions are binding – unless they are taken on review to court, and the court found differently. Neither the president nor the National Assembly did so, the Constitutional Court pointed out.

DA leader Mmusi Maimane on Thursday said he had already asked Speaker Baleka Mbete to schedule an impeachment motion. The judgment, Maimane said, was “clear in this regard: President Jacob Zuma’s action amounts to a serious violation of the Constitution, and constituted grounds for impeachment”.

Other political parties represented in Parliament such as the United Democratic Movement, IFP, Freedom Front Plus and Cope said Zuma should do the honourable thing and resign, or be recalled by the ANC.

So did EFF leader Julius Malema, who also took a different tack by refocusing on Parliament’s constitutional responsibilities and powers of holding the executive to account.

There is no special treatment for the president here. Not by Parliament, not by the ANC, and not by anyone,” Malema said. And citing ANC Chief Whip Jackson Mthembu’s public comments that the party wrongly handled the Nkandla matter, Malema said there now was “an opportunity to self-correct” and for the ANC in Parliament to do the right thing: “Let the ANC of OR Tambo rise, not the ANC of personality cult… Let’s see what happens at Parliament.”

But here it may all come apart amid a manipulation of parliamentary processes and rules for political purpose. The National Assembly currently has no rules to govern motions to remove a president from office under Section 89(1) of the Constitution. There are draft rules, which will be discussed next week by the rules subcommittee. If approved, they will still have to be adopted by the National Assembly before coming into force.

So one option could be to argue that the National Assembly could do nothing until the rules are in place. And that process could be dragged out given the high-pressure budget process over the next six weeks, followed by a three-month “constituency period” ahead of the municipal poll.

The proposed draft impeachment rules outline a two-step process. First, there should be a motion to establish an ad hoc committee to consider a charge against the president and to assess its seriousness “beyond a reasonable doubt”. If yes, then follows a motion based on the committee’s recommendation, to be debated in the House. There are also several requirements such as agreement from the Speaker – Mbete, as ANC national chairwoman, is one of the party’s top six officials – and that the charge “personally” involve the president, not just arising from his general executive powers.

If these draft impeachment rules are adopted urgently, and the DA’s motion to remove Zuma from office is scheduled, again the process could be dragged out; it could quite justifiably take time to determine the seriousness of a charge against the president.

Of course, the National Assembly may decide to schedule the impeachment motion anyway and use its numbers to defeat it as has happened in the past. The lack of in-house procedures was no obstacle to the September 2015 DA impeachment motion against Zuma for the controversial departure of Sudanese president Omar al-Bashir from the African Union summit despite International Criminal Court warrants of arrest for genocide and war crimes.

But Parliament has some serious thinking to do in the wake of the Constitutional Court judgment. For two years the ANC in the national legislature has been accused of protecting the president in the Nkandla ad hoc committees. The Public Protector was sharply criticised by ANC MPs for overreach in committee proceedings boycotted by the EFF for being unconstitutional. Other political parties participated and, unsuccessfully, tabled an alternative report to show all avenues had been exhausted in the scandal over the R215-million taxpayer-funded security upgrades at Zuma’s rural Nkandla homestead. Late last year, the National Assembly adopted a resolution absolving Zuma from repayment in line with Police Minister Nkosinathi Nhleko’s report instituted at Zuma’s behest, which had been used to frame the terms of references of the third and final Nkandla committee.

While the National Assembly has the discretion to determine its own mechanisms as to how to hold the executive to account, the Constitutional Court said it had “flouted” these constitutional obligations in Section 55. “There was everything wrong with the National Assembly stepping into the shoes of the Public Protector, by passing a resolution that purported effectively to nullify the findings made and remedial action taken by the Public Protector and replacing them with its own findings and ‘remedial action’,” the judgment said. “This, the rule of law is dead against. It is another way of taking the law into one’s hands and thus constitutes self-help.”

And the Constitutional Court reminded Parliament of its importance in South Africa’s constitutional democracy as “the embodiment of the centuries-old dreams and legitimate aspirations of all our people” and the voice of the poor, voiceless and least remembered.

Parliament is the mouthpiece, the eyes and the service-delivery-ensuring machinery of the people. No doubt, it is an irreplaceable feature of good governance in South Africa.” DM

Photo: President Jacob Zuma arrives to give his Sate of the Nation address at the opening session of Parliament in Cape Town, South Africa, 11 February 2016. EPA/MIKE HUTCHINGS/POOL

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