South Africa

South Africa

Damning ruling be damned: Parliament brings obfuscation on ConCourt ruling to new level

Parliament’s presiding officers on Sunday took a narrow view of the seminal Constitutional Court judgment in the Nkandla matter, which three days earlier found the National Assembly, along with President Zuma, had acted inconsistently with the Constitution by adopting its own resolution replacing the public protector’s remedial action. Welcoming the judgment as having given “legal certainty”, National Assembly Speaker Baleka Mbete and National Council of Provinces (NCOP) chairwoman Thandi Modise nevertheless repeatedly emphasised that at no stage did the Constitutional Court say the national legislature was not entitled to determine its own processes. By MARIANNE MERTEN.

There are no apologies necessary, nor was there reason to resign. “I don’t think Parliament, or the National Assembly specifically, is in a position where our understanding (is) that we have done something malicious for which we have to apologise. No!” said Mbete, who added she was not considering resigning.

Mbete said the court ruled “a particular action was inconsistent with the Constitution. It’s different from saying we went out knowingly and violated the Constitution”.

Later she added: “(The court) did not question what the National Assembly did in terms of the procedures followed”, but that instead of passing the resolution absolving the president from any repayment, the National Assembly should “rather taken it up with the courts”.

Or as Modise put it: “There was nothing wrong with the processing of the issues… What the court ended up finding was that instead of Parliament after processing that report, instead of then deciding that our own findings as Parliament were going to replace those (public protector) findings, we should have taken those to court.”

In a nutshell, the lesson for Parliament from the Constitutional Court ruling in the Nkandla debacle is this: if the parliamentary process ultimately disagreed with the public protector’s remedial action, the courts should be approached.

At Sunday’s media conference the focus was squarely on the sections of the Constitutional Court ruling that said it was not up to the judges to tell MPs how to do their jobs. But who would have thought anything different would happen? As guardians of the Constitution, the judges would never have strayed from South Africa’s supreme law. The question was always about whether the Constitution was upheld not only in the letter, but also its spirit. And like President Jacob Zuma, who was found to have violated the Constitution, the National Assembly was found wanting.

Section 55 of the Constitution is clear:

The National Assembly must provide mechanisms to ensure that all executive organs of state in the national sphere are accountable to it, and to maintain oversight of the exercise of national executive authority, including the implementation of legislation, and any organ of state”.

Thus Mbete highlighted the judges’ statement that “it falls outside the parameters of judicial authority to prescribe to the National Assembly how to scrutinise executive action, what mechanisms to establish…”, and that “in principle there is nothing wrong with wondering whether any unpleasant finding or outcome is correct and deploying all the resources at one’s command to test its correctness”.

Not dealt with were other parts of the judgment, which found “there was everything wrong with the National Assembly stepping into the shoes of the public protector” and passing a resolution to effectively replace the binding public protector remedial actions with its own. This the Constitutional Court described as something “the rule of law is dead against. It is another way of taking the law into one’s hands and thus constitutes self-help”. Or the part where the court said the National Assembly by effectively setting aside the public protector’s findings and remedial action, was “usurping the authority vested only in the judiciary”, the only instance which could review the public protector’s findings.

Nor were there clear answers on the potential impact of the Constitutional Court ruling on the standing of Parliament, particularly on its constitutional duty of overseeing and holding to account the executive. Every MP swears an oath of office to uphold the Constitution.

For almost two years in two Nkandla ad hoc committees, ANC MPs were criticised for moving to protect Zuma in parallel processes which alongside the public protector’s report also considered other reports on the R215-million taxpayer-funded security upgrades to his Nkandla rural homestead. These included the reports of an inter-ministerial task team, of Parliament’s joint standing committee on intelligence (JSCI) and from the Special Investigating Unit (SIU), which requires a presidential proclamation.

In late 2015 the National Assembly passed a resolution absolving the president of any liability that was linked to Police Minister Nkosinathi Nhleko’s report, which argued there were no repayments due as even the non-security benefits such as the swimming pool, cattle kraal, chicken run, amphitheatre and visitors’ centre were security measures. Nhleko, who serves at the president’s pleasure, was asked by Zuma in August 2014 to determine whether repayments were due. In March 2014 the public protector’s “Secure in Comfort” report found the president had to repay a reasonable percentage of the costs of those non-security benefits after a determination by the National Treasury and SAPS.

Mbete said the Constitutional Court had now provided “legal certainty” and made “sound, balanced and critical findings”. These “major and most welcomed lessons” would now guide parliamentary processes handling reports of Chapter 9 institutions in future.

Over the next few days Mbete is meeting leaders of political parties represented in Parliament. On the agenda are requests for a debate on the Constitutional Court case, and the establishment of a committee to unpack the judgment. But first it’ll be all eyes on Tuesday’s DA-sponsored motion to remove Zuma from office under Section 89(1) of the Constitution following Thursday’s court ruling in the case the Economic Freedom Fighters (EFF).

On Tuesday morning opposition parties are holding a series of meetings as ANC secretary-general Gwede Mantashe is addressing the parliamentary caucus. A meeting of the ANC political committee in Parliament is also scheduled.

ANC numbers in the House, 249 of the 400 seats, set the scene for the motion to be defeated, particularly as the governing party traditionally closes ranks amid opposition criticism.

While the presiding officers on Sunday maintained Tuesday’s proceedings should be allowed to unfold, Mbete added: “We should welcome the fact that we are not suppressing the debate on the motion”. A generous move indeed. DM

Photo: National Assembly Speaker Baleka Mbete and National Council of Provinces (NCOP) chairwoman Thandi Modise (Greg Nicolson).

Gallery