President Jacob Zuma has to “pay back the money”. After a protracted battle over the Public Protector’s Nkandla report, Zuma has to comply with Thuli Madonsela’s prescribed remedial action that a reasonable percentage of the cost of non-security upgrades at the president’s Nkandla home be paid back to the state.
This is the least contentious issue emerging from the unanimous judgment by 11 Constitutional Court judges on Thursday, as the president’s legal team had already conceded during the hearing in February that the Public Protector’s findings were binding and therefore Zuma would have to reimburse the state.
The application was brought by the Economic Freedom Fighters (EFF) and later the Democratic Alliance (DA) for the Constitutional Court to determine whether the powers of the Public Protector were binding and whether Zuma had violated the Constitution by not complying with the remedial action. The court was also asked to rule on whether the National Assembly had failed to fulfil its constitutional obligations to hold the president accountable.
During the hearing, Advocate Jeremy Gauntlett tried to convince the judges not to issue a declaratory order that could be used by opposition parties against the president. “This is a delicate time in a dangerous year,” Gauntlett said, arguing that it would be wrong for “this court to be inveigled into a position of making some form of wide, condemnatory order, which will be used effectively for an impeachment in Parliament”.
But that is exactly what the Constitutional Court did. The judgment written and read by Chief Justice Mogoeng Mogoeng, and loaded with explosive comments and legal interpretations, stated the following:
“The only real disagreement amongst the parties about the draft order relates to the unqualified binding effect of the Public Protector’s remedial action and whether a declaratory order should be granted to the effect that the President failed to fulfil his constitutional obligations in terms of sections 83, 96 and 181(3) of the Constitution and violated his oath of office. Also that the National Assembly breached its constitutional obligations in terms of sections 55(2) and 182(1)(c) of the Constitution.”
“Consistent with this constitutional injunction, an order will thus be made that the President’s failure to comply with the remedial action taken against him by the Public Protector is inconsistent with his obligations to uphold, defend and respect the Constitution as the supreme law of the Republic; to comply with the remedial action taken by the Public Protector; and the duty to assist and protect the office of the Public Protector to ensure its independence, impartiality, dignity and effectiveness,” Mogoeng said.
“Similarly, the failure by the National Assembly to hold the President accountable by ensuring that he complies with the remedial action taken against him, is inconsistent with its obligations to scrutinise and oversee executive action and to maintain oversight of the exercise of executive powers by the President. And in particular, to give urgent attention to or intervene by facilitating his compliance with the remedial action.”
In terms of the order granted by the court, the National Treasury must determine a reasonable percentage of the costs of those measures, which ought to be paid personally by the president, and report back to the court within 60 days. “The President must personally pay the amount determined by the National Treasury… within 45 days of this Court’s signification of its approval of the report.” The court also ordered Zuma to reprimand the ministers involved in the Nkandla upgrades, as prescribed by Madonsela.
There is no doubt that the judgment delivered major body blows to Zuma and the ANC in Parliament and sent shockwaves through the political stratosphere. Mogoeng could have been more delicate and nuanced, but he is the chief guardian of the Constitution. In an era of madness and confusion, he decided to swing “the sharp and mighty sword” of constitutionalism, accountability and the rule of law.
He wanted to “chop the ugly head of impunity off its stiffened neck”. And he did.
Mogoeng described what the President of our Republic ought to be and then spelt out how Zuma failed in his responsibilities.
“The President is the Head of State and Head of the National Executive. His is indeed the highest calling to the highest office in the land. He is the first citizen of this country and occupies a position indispensable for the effective governance of our democratic country… He is a constitutional being by design‚ a national pathfinder‚ the quintessential commander-in-chief of State affairs and the personification of this nation’s constitutional project.”
But Jacob Zuma is not that president.
“The President thus failed to uphold‚ defend and respect the Constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the Public Protector in terms of her constitutional powers.” He might have been following wrong legal advice, Mogoeng said, but that does not “detract from the illegality of his conduct”.
Thuli Madonsela, a woman derided for doing her job, finally got the affirmation and respect she was long due.
“The Public Protector is thus one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in State affairs and for the betterment of good governance… She is the embodiment of a biblical David, that the public is, who fights the most powerful and very well-resourced Goliath, that impropriety and corruption by government officials are. The Public Protector is one of the true crusaders and champions of anti-corruption and clean governance.”
“Her investigative powers are not supposed to bow down to anybody, not even at the door of the highest chambers of raw State power,” Mogoeng said.
At a media briefing, Madonsela thanked the Constitutional Court for the “ground breaking” judgement but also revealed that she was under investigation by the Hawks and the National Prosecuting Authority (NPA) for believing that her powers were binding. Both the Hawks and NPA have denied this but in a state corrupted with dirty tricks and harassment, it is possible that there were attempts to intimidate Madonsela.
The beauty of Mogoeng’s judgment is that it kills off much of the ridiculousness the country has been subjected to – from government’s insistence that the swimming pool at Nkandla was a “firepool” to claims that Madonsela was part of a subversive plot to effect regime change.
But the poetry and mastery of the judgment camouflages the constitutional crisis that now beckons.
In light of the binding ruling that both the president and the National Assembly acted unlawfully and in contravention of their constitutional obligations, can they retain their legitimacy? Can they be trusted to perform their functions for the remainder of their term? While the Constitutional Court affirmed the remedial action determined by the Public Protector for the sins of the Nkandla upgrades, there is no remedy prescribed for Zuma and the National Assembly being in breach of the Constitution and the law.
And thus we move into the territory Gauntlett wanted to avoid but the esteemed judges believe we need to contend with.
The DA, predictably, has begun a process to impeach the president. EFF leader Julius Malema says Zuma should “respectfully resign” or should be recalled by the ANC. Malema says the Constitutional Court ruling renders Zuma illegitimate and therefore he should not be allowed to address Parliament. He told a media briefing that the EFF would “physically remove” Zuma should he attempt to address Parliament. “President Zuma’s journey ends here,” Malema said.
Since Parliament was complicit in the violation of the Constitution, it also has no credibility, says Malema. He believes it should be dissolved and early elections called.
United Democratic Movement leader Bantu Holomisa says Zuma has been given a “red card” by the court and therefore should “pack his bags and go”.
But there appears to be no clear and coherent plan of action by the opposition to deal with the repercussions of the judgment, in light of their inadequate numbers to win any vote on punitive action in Parliament.
Attention now shifts to the ANC to see whether it will lie down and accept another pummelling on behalf of its leader or act according to the precedent it set in 2008 when it recalled Thabo Mbeki from office on the basis of a court ruling. The Constitutional Court judgment is weightier than the Nicholson judgment that was used to recall Mbeki, and far more devastating in terms of its findings against Zuma.
Zuma has caused so much reputational damage to the ANC, has failed in his leadership responsibilities and has brought the organisation into disrepute on so many issues that the Constitutional Court judgement should not even be needed as a basis to remove him from office.
But Zuma has survived every scandal and allegation against him because he is able to wriggle out of responsibility for his actions. He will attempt to do so again on the Nkandla matter because of the strategy he employed throughout the saga.
Zuma will argue that he never acted alone on the Nkandla issue and always took the ANC along with him. It is not untrue. Zuma had briefed ANC and alliance structures on his perspectives on Nkandla and the matter was discussed by the national executive committee (NEC) several times. Police Minister Nkosinathi Nhleko’s ridiculous (and now illegitimate) report and firepool video were even presented to an alliance summit.
While some NEC members had expressed reservations about the ANC caucus’s defence of the president and non-compliance with the Public Protector’s report, advising Zuma to either challenge Madonsela in court or pay up, the ANC had consistently stood by the president.
In light of the damning judgment now, the ANC cannot simply disown the president and take action against him when they effectively condoned his approach to the Nkandla issue.
But the ANC also cannot be seen to be doing nothing when the highest court in the land has delivered such a scathing judgment against its leader and its representatives in Parliament. ANC secretary general Gwede Mantashe said a meeting of the top six officials would be held on Thursday night but this did not take place. It is not clear when they will meet and whether they will call an NEC meeting to determine the ANC’s response to the judgment.
With the ANC beset with fractures and divisions, taking a decision to reprimand or act against its president is extremely difficult. Already the ANC Women’s League (ANCWL) pledged on Thursday night that it was “unequivocally, unambiguously and categorically clear that we firmly stand behind the ANC president”.
“Our faith and support for President Jacob Zuma remains unshaken and have full confidence of the nation’s development under his leadership,” the ANCWL said.
Other structures and leaders in Zuma’s camp are likely to also come out fighting on his behalf while those opposed to him have no clear strategy and are unsure of their support within the ANC should they make a move to dislodge the president. The effect is that the ANC might continue to limp along, carrying Zuma, with the Nkandla, Gupta and “spy tapes” controversies all playing out simultaneously, while they contest a highly competitive local government election.
The judges of the Constitutional Court handed the ANC, the opposition and the country the sword to slay the dragon. But Zuma has proved to be unconquerable before and might not be done for yet. He will not go easily and will not let go of the ANC until they are strong enough to let go of him.
Thursday, 31 March 2016, was a day of triumph for South Africa’s democracy thanks to the exceptional minds that occupy the benches of the Constitutional Court. But it was also a day that marked the tragedy of our time, stuck in a dilemma with a president and Parliament that betrayed our Constitution and a political leadership dragging us closer and closer to the precipice. DM
Photo: South Africa’s President Jacob Zuma gestures as he addresses an African National Congress (ANC) policy meeting in Midrand, north of Johannesburg, June 29, 2012. REUTERS/Siphiwe Sibeko
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