When asked by members of the media during an EFF Press Conference following the Nkandla Judgment, as to what it would mean if Zuma does not resign and the ANC does not recall him. The CIC Julius Malema said it would place the country “in a constitutional crisis”. The CIC went on to explain to members of the media that we are a “constitutional democracy” and what that means in relation to the verdict of the Constitutional Court against Zuma.

The CIC explained that indeed majority rules in our country, and this it is a basic game of numbers. Those with the most votes, must take the final decisions on the government of the day. However, they do not do so absolutely. Their power, the power of having the many, has limits and this is where the idea of the constitution becomes critical.

This caveat tells us that “majority” is not in and of itself right and it may not always be right. For instance, the majority may decide that all children who were born prematurely must be killed. But once born, the person enjoys the basic right to live, and thus, killing them will be wrong. It means the majority, however important it is to the practice of democracy, it is not the alpha and omega in that it alone, on the basis of being “many” must decide all things. 

The limits on the power of the majority are entailed in our constitution, in particular the bill of rights. The constitution, which is the supreme law of the land, is above parliament rules, legislations and all other laws. The legitimacy of any legal conduct or practice must take its source from the supreme law and always be in concert with it.

It is also in the constitution where we find the definition of South Africa. In Chapter 1, Section 1 (c) says “The Republic of South Africa is one, sovereign, democratic state founded on the following values; “Supremacy of the constitution and the rule of law.” Section 2 continues to say “this constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”

This is the starting point of speaking about the nation we call South Africa. Without the constitution, we are just a group of people suffering from high levels of unemployment, poverty, homelessness, under-education, disease, anti-black racism and patriarchy. The constitution makes us a nation, gives identity and character.

Thus, when we start undoing the supreme law of the country, we are essentially undoing the country, rendering it into a state of nationlessness. What makes us a unit, a collective, a nation, what makes us “South Africa” is the supreme law, therefore those who violate the supreme law, offend our nationhood. To violate the constitution is to violate the nation.

This idea is the reason why there is a constitutional provision that those who violate the constitution or the law should not hold public office because the duty of public representatives is to protect the constitution. That is why Section 89 of the Constitution says the National Assembly may remove a president only on the grounds that the president has (a) a serious violation of the Constitution or the law; (b) serious misconduct; or (c) inability to perform the functions of office. 

Additionally, we must bare in mind the basic constitutional provision for who can be a member of the National Assembly as articulated in Section 47 of the constitution. In order to be a President, you MUST first be a member of the National Assembly, precisely because you would have passed the test of Section 47 which prohibits those who have been found guilty and sentenced to imprisonment for more than 12 months without an option of a fine to hold public office. Section 86(1) says “At its first sitting after its election, and whenever necessary to fill a vacancy, the National Assembly MUST elect a woman or a man from among its members to be the President.”

Therefore, only an MP can be a President, and only those who have not been found guilty and sentenced to more than 12 months without a fine can be MPs. Moreover, once elected President, the constitution in section 83.1 and 2 says “The president is the Head of State and Head of the national executive; (he) must uphold, defend and respect the Constitution as the supreme law of the Republic. Even Section 87, which speaks about the Oath or affirmation of office, emphasises that “when elected President a person… must assume office by swearing or affirming faithfulness to the Republic and obedience to the Constitution”. This means even after holding office, the President must not be found guilty and sentenced for more than 12 months without a fine. 

However, as we can realise by now, the standard test actually rises higher for the one that holds office of what the constitution calls the “high calling” of president. Our constitution says he must not violate the constitution or the law. The constitution also requires of president to protect the constitution. As indicated by CIC Julius Malema, the wisdom of this is that you cannot ask people who “break” the law, to be the ones that “protect” the law. 

The conclusion is simple, Zuma has offended the country. When he took platform to apologise for violating the constitution, Zuma should have also resigned. In fact, when he accepted, before the constitutional court set for deliberations that he will pay back the money, it was already clear that he accepted to have violated the constitution.

If Zuma does not resign, if he continues as president after he admits that he violated the constitution, then we are no longer a South African nation. When people break the lower laws, we can always evoke the supreme law and use it to say our nationhood still exists. However, when those in power, in particular as Presidents, break the supreme law and remain in office, then we have nothing to show that we are a nation.

This is the meaning of a “constitutional crisis” that the CIC was referring to. If a President offends the constitution, he has offended our soul, our claim to identity. Once broken, and the man remains in office, then we are in a beyond and in this beyond anything goes – this terrain CIC called “a constitutional crisis”.

This crisis is the creation of the ANC which over the years elevated Zuma above themselves first as a party, creating him into a demigod who could not be told when he is wrong. All who dared to rise without and amongst them to speak against his conduct, were marginalised, and in the case of the CIC expelled from the party. As a result, insidiously they began to elevate him as an individual above the country and its interests. Zuma degenerated in their eyes before he did so openly in front of the whole world; now he threatens to launch us all into a crisis of lawlessness and still they are not rising to the occasion of elevating the country above him. DM