Max du Preez

Nkandla judgment: A splendid day for democracy

2016-03-31 15:20

Max du Preez

What a splendid day for democracy in South Africa at a time many citizens were beginning to question whether we were on the slippery slope to becoming a banana republic.

This was an extremely rare event in world history: the highest court in a multi-party democracy tells the president and the elected parliament that they had flouted the constitution.

We may not see President Jacob Zuma impeached by parliament soon, but make no mistake: the Constitutional Court’s judgement on the Nkandla scandal was a major political earthquake that has irrevocably changed the political landscape. We will feel the aftershocks for years to come.

For as long as this Constitutional Court judgment stands, South Africa will not again have a Big Man in Africa, a chief that treats his country as a private fiefdom, as president. 

In the words of Chief Justice Mogoeng Mogoeng: “The President thus failed to uphold‚ defend and respect the Constitution as the supreme law of the land."

The last time the concept of impeachment of a president made headlines was the case of US president Richard Nixon, but he resigned in 1974 just before he could be impeached.

Here’s the relevance: his sin wasn’t the burglary of opposition offices, but the way he covered it up. Zuma’s primary sin wasn’t that he had the state upgrade his homestead, but that he covered it up; that he denied that he knew about it or asked for it; and that he discredited and defied the public protector in the process.

The ConCourt judgment has one understated extra value: it clearly and simply brought the point home to many citizens that didn’t fully understand the very basis of our democracy, and that appears to include the president and the ANC’s parliamentary caucus: South Africa isn’t a parliamentary or a majoritarian democracy, it is a constitutional democracy.

Not the president, the cabinet or parliament may do anything, even make a law or an appointment, that is in conflict with the constitution, irrespective of these politicians’ popularity or majority in the last election.

The Constitutional Court is the guardian of the constitution and it alone will finally decide whether a law or a decision or action was in line with the constitution or not.

The court has also finally brought clarity on the powers of the public protector (Chief Justice Mogoeng Mogoeng referred to her as the public’s  David that has to combat the state’s Goliath): her findings are binding and can only be overruled by a court of law.
 (This finding, by the way, must surely also mean the demise of Hlaudi Motsoeneng, COO of the SABC, who has also ignored a finding of the public protector, in his case that he be suspended and investigated.)

The DA and other opposition parties now demand that Zuma be impeached. Zuma’s advocate, Jeremy Gauntlett SC, had earlier pleaded with the Constitutional Court not to declare that Zuma had acted in breach of the constitution – “it is a sensitive time in a dangerous year”, Gauntlett said, and added that such  a finding could be used to impeach him.

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.”

Today’s court decision clearly satisfied sub section(a), that Zuma had violated the constitution. But the operative word here is “may”: parliament may impeach the president, not “must”. It remains the decision of the ANC majority in parliament whether it wanted to institute impeachment proceedings or not.

Morally and ethically speaking, the ANC should not even think twice before impeaching the president that had defied the constitution and lied to parliament – those are the highest sins a president could possibly commit. 

This was what Judge Mogoeng said about the president’s position – now judge that against who and what Zuma is and what he has done:

“The President is the Head of State and Head of the national Executive. His is indeed the highest calling to the highest office in the land. He is the first citizen of this country and occupies a position indispensable for the effective governance of our democratic country.

"Only upon him has the constitutional obligation to uphold‚ defend and respect the Constitution as the supreme law of the Republic been expressly imposed… To him is the executive authority of the entire Republic primarily entrusted. He initiates and gives the final stamp of approval to all national legislation.

"And almost all the key role players in the realisation of our constitutional vision and the aspirations of all our people are appointed and may ultimately be removed by him.

"Unsurprisingly‚ the nation pins its hopes on him to steer the country in the right direction and accelerate our journey towards a peaceful‚ just and prosperous destination‚ that all other progress-driven nations strive towards on a daily basis. He is a constitutional being by design‚ a national pathfinder‚ the quintessential commander-in-chief of State affairs and the personification of this nation’s constitutional project.”

But the ANC caucus that has to decide whether to impeach Zuma is the same caucus that had spent years - actually, since December 2009 – to protect, exonerate and defend Zuma on the Nkandla issue.

The Constitutional Court’s indictment of the National Assembly (actually, it was only referring to the majority ANC members) was as devastating as its indictment of Zuma: that it had flouted its constitutional obligations to hold the president and executive accountable.

Today is a good day to remember the many, many occasions that prominent ANC leaders had stood up in parliament on the Nkandla issue and defended Zuma with great enthusiasm and conviction, rubbishing his critics in strong language and calling Public Protector Thuli Madonsela all kinds of nasty names, like frontbenchers Mathole Motshekga and Doris Dlakude had done many times. 

The list with black marks is long, but it’s topped by Police Minister Nathi “Firepool” Nhleko, Public WorksMminister Thulas Nxesi, speaker Baleka Mbete, former ANC whip Stone Sizane, Communications Minister Faith Muthambi and senior MPs Cedrick Frolick, Cecil Burgess and Luwellyn Landers.

Judge Mogoeng again: "Public office-bearers ignore their constitutional obligations at their peril. This is so because constitutionalism‚ accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.

"If these values are not observed and their precepts not carried out conscientiously‚ we have a recipe for a constitutional crisis of great magnitude."

He may not be impeached soon, but Zuma’s position, already weakened by scandal upon scandal and especially the recent evidence that his Gupta associates had captured sectors of the state, is now virtually untenable.

Is the ANC leadership going to wait until the high court orders the National Prosecuting Authority to review its decision to drop charges against Zuma, as it is widely expected to do soon, before they act against Zuma?

Another question the leadership has to ask itself: wouldn’t the ANC be better off going into the local elections without Zuma? 

- Follow Max on Twitter.

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