Our protest action has to this point included a double movement of direct action and boycotts. We shall now be adding legal action, in particular as it relates to Parliament’s failure in holding Zuma accountable following the Constitutional Court judgment that he has violated his oath of office.
Why is Zuma an illegitimate president?
On many occasions, our call for Zuma to step down is projected as an anti-majoritarian rule as if it is a rejection of the fact that the South African electorate voted the ANC in majority in 2014. It is a fact of record that the EFF has accepted the outcomes of the 2014 elections, including the subsequent election of Zuma as president by Parliament. The call for his removal, however, is about a Constitutional Court decision regarding his personal conduct as president and has nothing to do with a majoritarian electoral decision of 2014.
Ours is a constitutional democracy which has always meant that the decisions of the majority prevail, but not under the conditions of their choosing. The majority rules under the dictation of the supremacy of the Constitution. Without adherence to the Constitution, we would render our democracy into a “mob justice” kind of system because without the Constitution, democracy is just an arbitrary will of a mob based on whim. It is therefore the Constitution which sets out the high vision, values and principles that turn a mob into a people or nation.
To be a constitutional democracy means that the Constitution is both the ground on which the majority stands to rule and the sky upon which it looks for its achievements in ruling. Therefore, even after a political party has won elections, it must work within the Constitution and the laws that govern South Africa to elect a president. So, what does the Constitution say about such an election? Section 48 of South Africa’s Constitution says:
“Before members of the National Assembly begin to perform their functions in the Assembly, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2”.
Section 86 (1) of the Constitution 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.”
Section 87 of the Constitution says,
“When elected President, a person ceases to be a member of the National Assembly and, within five days, must assume office by swearing or affirming faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.”
Schedule 2 of the Constitution binds the President to “obey, observe, uphold and maintain the Constitution and all other law of the Republic”. This OATH is therefore the prerequisite, the non-negotiable phase through which a person who must be a president must affirm or declare before God and the people that they will respect. That is why before anyone can be president, a day is set out for such an oath to be taken, without which they can never resume office. Thus, when Zuma took his oath at the Union Buildings his last words were “So help me God”. For breaking his solemn oath he will have to answer to God one day but for breaking his oath to South Africans he must answer to Parliament.
Section 83 imposes certain obligations on the President. In particular, it provides that:
a. must uphold, defend and respect the Constitution as the supreme law of the Republic”
On March 31, 2016, the Constitutional Court ruled in a unanimous judgment that the sitting President, Jacob Zuma, “failed to uphold, defend and respect the Constitution as the supreme law of the land… He might have been following wrong legal advice and therefore acting in good faith. But that does not detract from the ILLEGALITY of his conduct regard being had to its inconsistency with his constitutional obligations in terms of sections 182(1)(c) and 181(3) read with 83(b)”.
In essence, the Constitutional Court found that Zuma as president acted illegally, unlawfully, and failed to uphold, defend, and respect the Constitution.
Because of this, and not anything else, Jacob Zuma is not eligible to be president of South Africa. Treating and working with Jacob Zuma like he is a president is also a violation of the Constitution, and the National Assembly is not constitutionally allowed to vote wrong into right even if it were to be by all of its 400 members.
Our Constitution has only two qualifications that any adult citizen must have in order to be president. It does not ask them to have a matric certificate or a PhD, it only asks them to be faithful to the Republic and obey the Constitution. Jacob Zuma has violated the Constitution; in that he allowed a crime of corruption to take place in his home, in his name, for his benefit and did nothing, even when he was told. Most importantly, as the Constitutional Court judgment states that his failure manifests from the substantial disregard for the remedial action taken against him by the Public Protector in terms of her constitutional powers.
The second respect in which he failed relates to his shared section 181(3) obligations. He was duty-bound to, but did not, assist and protect the public protector so as to ensure her independence, impartiality, dignity and effectiveness by complying with her remedial action.
Such a person has disqualified himself to occupy the office of the president, even if voted by any majority, no matter how big or powerful that majority may be.
This is not a question of votes, it is a prerequisite to any voting. Neither is it about the state of confidence in the president; even if every single citizen in the country still has confidence in a president, if that president has been found by a court of law, let alone the highest court in the land, to have violated the Constitution, they cannot be president. It is therefore on this basis that we shall never recognise Zuma as president. We will never allow anyone or any mob to force us to recognise Zuma, even if they come with all the military might in the world. To recognise him, we too will be failing in our oath of office and obligation to protect the Constitution.
We have taken a decision to approach the court to force Parliament to either institute disciplinary or impeachment proceedings against Zuma. The Constitutional Court judgment must serve as prima-facie evidence to the effect that Zuma should not be holding public office. Disciplinary or impeachment proceedings must be constituted where Zuma will have to answer in terms of Section 89 of the Constitution which reads 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 serious violation of the Constitution or the law;”
Our prayers will be that following the ruling by the Constitutional Court that Zuma has violated the Constitution, the Speaker of the National Assembly must constitute a disciplinary or impeachment committee to establish whether Zuma’s constitutional violation is a “serious violation”. We are of the view that Zuma must appear in front of this committee to answer and be held accountable in terms of his conduct as it relates first to the Constitutional Court judgment and secondly, that he misled Parliament by saying he received a bank loan to build his Nkandla home when he did not.
In defending Jacob Zuma, the ANC caucus has often said that his violation of the Constitution is “not serious”. We say it is more than serious. Therefore, let a fair disciplinary or impeachment process determine which of these opposing views is correct. If indeed the violation is found to be serious then Zuma must be removed as prescribed in the Constitution.
Since this damning judgment by the Constitutional Court, the EFF has written to the Speaker of the National Assembly on several occasions requesting her to implement the judgment through a disciplinary or impeachment hearing. We have stood in protest, to the detriment of the safety of EFF MPs who have put their bodies on the line, to demand that Parliament must hold Zuma accountable in relation to this judgment by the Constitutional Court. The Speaker of Parliament has remained stubborn, partisan and violent.
By failing to act on the findings of the Constitutional Court, Baleka Mbete as the Speaker of Parliament is rendering this court useless, violating the rule of law and undoing our constitutional democracy. Zuma acted in exactly the same way in relation to the public protector’s report in that he ignored its findings and allowed Cabinet to amend the report without due judicial processes. Had the EFF not taken action, that office would be powerless and useless today.
Violence in Parliament
I want to thank the EFF MPs who, knowing that the security machinery of our country, in particular the military, had been organised against them, still went to Parliament to do their constitutional duty. These MPs have put their bodies on the line, not once, but on many occasions, to defend and stand for what is right. Security bouncers have been called to punish them under the pretext that they have broken the rules, but all in protection of Zuma who broke the supreme law of the land, the Constitution.
We must in particular commend the EFF female MPs, who as women have withstood the beatings of security men even when some of them were pregnant.
Following Thursday’s events Parliament announced that it will be taking members of the parliamentary security for counselling and medical care. This must be a sign of who matters to the leaders of Parliament; they care more about security than elected MPs. It also fits well with the idea that presiding officers are partisan – their attitude is that as long as these MPs do not belong to their political parties, they do not care for their safety and well-being.
It is a matter of fact that members of the South African Police Services were among the Parliamentary Protection Services who assaulted MPs inside the chamber on Thursday night. Accordingly, we shall be laying charges against Parliament for using police to remove MPs from the House. We shall also be suing the Minister of Police for all the assaults that EFF MPs suffered at the hands of the SAPS that entered the House disguised as Parliamentary Protection Services.
We have demonstrated that intimidation and usage of force will never stop us from doing what is right. We know our rights and our duties as elected Members of Parliament. We are not prepared to break the law, just because the majority says so. Let the record of history show that we refused to be bullied by both the Zuma and the ANC collective into distorting the rule of law in the country.
Our Constitution empowers us with the right to protest, and we have done so peacefully on many occasions. Our peaceful protests have all been met with violence and intimidation all in protection of a person that has undermined the supreme law. Rules of Parliament must be broken if they get used to promote the violation of the Constitution; we will be prepared to break them again if given an opportunity, in protection of supreme law of the land. DM
"What magic are you who dies and still lives on?" ~ Lebo Mashile