Only dead fish go with the flow
23 August 2017 12:07 (South Africa)
Opinionista Pierre de Vos

Con Court Nkandla judgment preview: Forget about impeachment

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

Some journalists and members of the public seem to be confused about the Constitutional Court’s Nkandla‬ judgment and many are probably focusing on an irrelevant issue relating to the impeachment of President Jacob Zuma. It is important to note that the Constitutional Court cannot order the impeachment of the President. In terms of section 89 of the Constitution, only the National Assembly can decide on whether to impeach a sitting President.

It is important to remember that President Jacob Zuma has already admitted that he was in breach of on of his constitutional duties when he conceded before the Constitutional Court that the Public Protector’s findings and remedial action are binding and that these findings are legally valid.

The following finding from the Public Protector's report - which the President has now conceded is correct and binding - is important because it confirms that the President had failed to act in breach of his duties as President set out in section 96 of the Constitution.

10.10.1.5 It is also not unreasonable to expect that when news broke in December 2009 of alleged exorbitant amounts, at the time R65 million on questioned security installations at his private residence, the dictates of sections 96 and 237 of the Constitution and the Executive Ethics Code required of President Zuma to take reasonable steps to order an immediate inquiry into the situation and immediate correction of any irregularities and excesses.

10.10.1.6 His failure to act in protection of state resources constitutes a violation of paragraph 2 of the Executive Ethics Code and accordingly, amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the Constitution.”

By accepting the findings, the President has therefore conceded that he acted in breach of his constitutional duties and of the law.

This does not mean that the Constitutional Court will further find that the President deliberately flouted his legal and constitutional duties by refusing to implement the findings and remedial action imposed by the Public Protector.

Although the Supreme Court of Appeal (SCA) last year found in a different case that the findings of the Public Protector are binding, the Constitutional Court - the highest court in the country - has not yet spoken on this issue. Arguably there was therefore at least some legal uncertainty on whether the findings and remedial action of the Public Protector were binding or not.

It is therefore possible (although cynics might believe it was not probable) that the President truly believed that there was no legal duty on him to comply with the findings and remedial action contained in the Public Protector’s report. As far as I can tell (and as I have not read every single document submitted to the Constitutional Court, I cannot be 100% certain) there may thus not be sufficient evidence before the Constitutional Court for it to make a finding that over and above the breach of section 96 of the Constitution the President also deliberately breached the law and the Constitution when he refused to implement the findings of the Public Protector.

Given the concessions made by the President’s legal counsel before the Constitutional Court and the torrid time faced by council for the NA when she seemed to attempt to argue that the National Assembly (NA) was above the Constitution and the law (a legal position that harked back to the pre-democracy era when Parliament - and not the Constitution - was supreme in South Africa), it would not be surprising if the Constitutional Court finds that both the President and the NA had a duty to comply with the findings and remedial action imposed by the Public Protector and did not do so.

If the Constitutional Court agrees with the SCA about the nature of the Public Protector’s powers, it will find that it was not permissible for either the President or the NA to second guess the report of the Public Protector by conducting their own investigation and, in effect, replacing the findings contained in the Public Protector’s report with findings by a politically compromised entity such as the Minister of Police or an ad hoc committee of Parliament.

The SCA found that those implicated in a report of the Public Protector did not have the power to replace the findings of a independent constitutional body like the Public Protector with the findings of a politically compromised person like the Minister of Police. Nor could it ask a lawyer to review and set aside the findings of the Public Protector. (The SCA found that only a court could review and set aside the findings of the Public Protector.)

In terms of the SCA judgment the NA therefore had a constitutional duty to hold the President accountable based on the findings contained in the Public Protector’s report - and could not rely on the findings of the politically compromised Minister of Police to exonerate the President.

For those of us who carefully scrutinise court judgments it would be interesting to see whether the judgment will criticise the President for the manner in which he dealt with the Nkandla matter and if it does, what the nature of the criticism is. It would also be interesting to see whether the Constitutional Court criticises the President's legal team for the adventurous manner in which it presented the facts to the court. It will be interesting exactly because it is difficult to predict how circumspect about these matters the judgment will be.

Given the fact that the President’s legal council conceded most of the case before the Constitutional Court, it would not be surprising if the Constitutional Court found that there was a breach of the Constitution and the law by the President and the NA. (The Public Protector had in any case already found that the President was in breach of his constitutional obligations.)

But even if this is so, the Constitutional Court does not have the power (nor should it have the power) to order the impeachment of a President.

The President is indirectly elected by voters (via the National Assembly) while the judges of the Constitutional Court are not similarly elected by voters. For this reason judges would normally not nullify the democratic election of the President (unless the election was not free and fair).

What the Constitutional Court is permitted to do is to declare invalid unconstitutional acts by the legislature or the President and to order remedial action to correct the unconstitutionality. If it found a breach, it may therefore order the President to comply with the Public protector's report and to pay beck the money. It may also order the NA to hold the President accountable based on the findings of the Public protector's report.

The Court does not have the power to order impeachment because ultimately voters (and not unelected judges) decide who governs the country. Formally members of the NA will have to decide whether they wish to remove the President from office (although in practice the decision will be taken by the ANC leadership and not by the NA). When making such a decision, the governing party will have to decide whether they will be punished by voters if they fail to act. If the governing party believes it will not be punished by voters if it does not act, it would be perfectly within its powers not to act at all – regardless of how serious the findings of the Constitutional Court may be.

In this sense, the future of the President is in the hands of voters. This is how it should be in a democracy. Voters, rather than unelected judges, ultimately decides who governs the country.

In any case, section 89(1) clearly does not grant power to the Constitutional Court to order the impeachment of the President. That power is granted to the NA alone. Section 89(1) of the Constitution states that:

The National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the grounds of-

a. a serious violation of the Constitution or the law;

b. serious misconduct; or

c. inability to perform the functions of office.”

Members of NA from the majority party do not make momentous political decision independently from the leadership of the party. They are subjected to party discipline. Moreover they only serve in the NA because the leadership of the party has ultimately agreed for their names to appear high enough up on the ANC's election lists. The job security of members of the NA thus depends to some degree on the leadership of the party.

For this reason, it is not likely that MPs will “go rogue” and will defy the party leadership. If they do, they might just find themselves redeployed as second assistant secretary to the third in command of the South African delegation at the African Union.

Whatever the Constitutional Court judgment contains, it is the leadership of the ANC (and not the EFF, DA or ANC members of the National Assembly) that will decide what political action - if any - should be taken against the President. This decision will partly be influenced by how the voters react. If the party leadership become convinced that it stands to lose serious ground in the local government elections or that it stands to lose its overall majority at the next national elections because of the Nkandla scandal, it may well be persuaded to act. If it believes voters will not punish the governing party for what its President may have done, it may not act.

The future of President Zuma can therefore arguably be said to be in the hands of voters and not in the hands of the judges of the Constitutional Court. And that is how it should be in a constitutional democracy. DM

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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