The Economic Freedom Fighters (EFF) and the Congress of the People (COPE) chose not to participate in the parliamentary debate on President Jacob Zuma’s State of the Nation Address (SONA). They argue that the president flouted the Constitution (as held by the Constitutional Court in the Nkandla judgment), and was therefore an illegitimate president. The EFF and COPE are advancing a political (rather than a constitutional law) argument with which voters may either agree or disagree. But from a constitutional law perspective the president – elected by the National Assembly – remains the legitimate head of the national executive until he is formally removed from office.
Last year the Constitutional Court held in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others that President Jacob Zuma had failed to “uphold, defend and respect the Constitution as the supreme law of the land”.
By ignoring the remedial action imposed on him by the public protector, which required him to pay back a reasonable portion of the non-security related upgrades at his Nkandla home, the president failed to comply with his constitutional obligations as set out by section 83(b) of the Constitution.
The enormity of this failure lies in the fact that the president was personally enriched (at taxpayers’ expense) because of this failure to uphold the Constitution. Unlike other breaches of the Constitution, this failure personally benefitted him, creating the impression of venality on the part of the president.
It is important to remember that the Constitutional Court in its Nkandla judgment did not order the removal of President Zuma from office. This is not surprising as it would have been impermissible for the Constitutional Court to make such an order. Judges are not elected and in would be in breach of the separation of powers doctrine for judges to interfere in the power of the democratically elected National Assembly to elect and to remove the president.
In terms of section 86 of the Constitution it is a majority of members of the National Assembly that elects the President. In terms of section 102(2) of the Constitution it is only a majority of members of the National Assembly that can remove the president from office by passing a vote of no confidence in him.
If the National Assembly fails to remove an unpopular president from office who has enriched himself at the expense of ordinary citizens and has flouted the Constitution, the ultimate remedy will not lie with the courts.
The ultimate remedy will lie with voters who may choose to punish the majority party at the next election by casting their vote for any of the opposition parties. If enough voters decide to punish the majority party for the sins of its leader, the governing party will be ousted from government. This is because when the party of the president loses its majority in the National Assembly at such an election, the leader of that party will not be re-elected as president.
In terms of section 50 of the Constitution, the majority of members of the National Assembly may also instruct the president to dissolve the National Assembly, in which case new national elections will have to be held. This can only occur after at least three years have passed since the assembly was elected. But this is unlikely to happen while one party controls more than 50% of the seats in the National Assembly, as the instruction to dissolve the National Assembly must be supported by a majority of members of the National Assembly to be valid.
This does not mean that the court has no power to ensure that the National Assembly fulfils its obligations to hold the president and members of the executive accountable for their actions. In the Nkandla judgment, the Constitutional Court held that the National Assembly had flouted its constitutional obligations to hold the president accountable when it second-guessed the findings of the public protector and attempted to exonerate the president from having to pay back the money with which he was unlawfully enriched. As Chief Justice Mogoeng noted:
“[T]here 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’. 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.”
The Chief Justice then continued:
“By passing that resolution the National Assembly effectively flouted its obligations. Neither the president nor the National Assembly was entitled to respond to the binding remedial action taken by the public protector as if it is of no force or effect or has been set aside through a proper judicial process. The ineluctable conclusion is therefore, that the National Assembly’s resolution based on the minister’s findings exonerating the president from liability is inconsistent with the Constitution and unlawful.”
It is for this reason that the Constitutional Court declared invalid the resolution passed by the National Assembly absolving the president from compliance with the remedial action taken by the public protector against the president.
But it is important to note that while the power of the Constitutional Court to hold the National Assembly accountable for breaches of the Constitution are tangible and may have real consequences, this power is not unlimited. While the court can declare invalid attempts by the National Assembly to avoid holding the president accountable, it cannot instruct the National Assembly how to hold the president accountable. Chief Justice Mogoeng again:
“It falls outside the parameters of judicial authority to prescribe to the National Assembly how to scrutinise executive action, what mechanisms to establish and which mandate to give them, for the purpose of holding the executive accountable and fulfilling its oversight role of the executive or organs of state in general. The mechanics of how to go about fulfilling these constitutional obligations is a discretionary matter best left to the National Assembly. Ours is a much broader and less intrusive role. And that is to determine whether what the National Assembly did or did not do, does in substance and in reality amount to fulfilment of its constitutional obligations. That is the sum-total of the constitutionally permissible judicial enquiry to be embarked upon.”
What does this mean in practice?
First, it means that the Constitutional Court will never hold that the National Assembly had failed to fulfil its constitutional obligations to hold the president accountable by not passing a motion of no confidence in the president and by not removing him from office.
Even in a case where the president had failed to uphold the Constitution and was enriched because of this failure (as happened with the Nkandla scandal), the court will not intervene in the democratic process and will not undemocratically impose its will on the National Assembly and on South African voters.
Second, the position is slightly more complex where the president (or another member of the Cabinet) flouted the law or the Constitution, and the National Assembly refuses to do anything about this. The Constitutional Court may well hold in such a case (as it did in its Nkandla judgment) that the National Assembly had flouted the Constitution.
But what remedy would the court be able to provide for any such a breach of the Constitution by the majority of members of the National Assembly?
It is at least conceivable that the court could order the National Assembly to hold the president (or any cabinet minister) accountable in accordance with the existing rules of the National Assembly. But the Constitutional Court will never direct the National Assembly to take a specific action in this regard. As Chief Justice Mogoeng noted in the Nkandla judgment, the choice of how to hold the president or other Cabinet member) accountable lies within the exclusive discretion of the National Assembly.
Of course, this is not the end of the matter. Ultimate political power in a democracy does not lie with the courts. It lies with the voters. If voters are unhappy with the way in which the governing party in the National Assembly chose to hold the president (or other Cabinet minister) accountable, the voters can lend their vote to another party at the next election in the hope that the party of their choice (or a coalition of parties) achieves a majority in the National Assembly.
Where another party (or coalition of parties) manage to secure a majority in the National Assembly at the next election, this party (or coalition of parties) will have the power to elect the president of its choice. The voters would then, in effect, have fired the sitting president and the party he or she leads through the exercise of their constitutionally guaranteed right to vote.
Unless the National Assembly removes President Zuma from office or unless a new election is held and the governing party loses its majority in the National Assembly at this election, the president remains the duly elected president of the country.
Of course, the EFF, COPE or any other party remains free to advance a political argument about the moral legitimacy of a sitting president. Once again, voters will ultimately decide whether they agree with this argument or not. If the majority of voters agree with the argument of one or more opposition parties that the president is illegitimate, they will be able to use their vote to ensure opposition parties gain a majority in the National Assembly, allowing them to elect the president of their choice.
It is therefore a mistake – and fundamentally undemocratic – to expect the Constitutional Court to remove the president from office or to expect it to instruct the National Assembly to do so. It also signals a lack of respect for voters and the ultimate power they hold to decide the fate of a governing party and the President. DM
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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