Guest Column

Zuma must fall, but at what cost?

2017-04-16 06:03

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Vuyani Ngalwana

Let me make this absolutely clear as my point of departure. President Jacob Zuma must fall. His entire Cabinet must fall, too. So, too, the governing party. But at what cost? This is the question I seek to answer here.

Let me make another point crystal clear. I support none of the rumoured ANC factions. I do not subscribe to the narrative about white monopoly capital, and neither am I a Pravin Gordhan fan. In fact, I welcome his dismissal as finance minister; whatever the motivation does not interest me.

I stand for the unapologetic transformation of this economy. For me, transformation means “change for the better”, not substituting black for white monopoly capital. These are equally abhorrent to me.

Change for the better means a more inclusive economy, where South Africans of all races and both genders who work hard and earn an honest living are afforded fair opportunities to realise their potential and thrive in their endeavours through their industry.

But such transformation cannot ignore the egregious effects of apartheid on black people in particular. Even our supreme law, the Constitution, acknowledges this and calls for legislative and other measures to be taken that are designed to protect and advance black people since they were disadvantaged by unfair discrimination.

The Constitutional Court has endorsed this transformation jurisprudence in at least five judgments, beginning in 2002.

With that hopefully cleared up, I have been wondering whether the vocal people baying for Zuma’s blood – at almost any cost – have any idea what they are asking for, and what they will do with it if they get it.

Let me explain.

I have learnt in the media that an opposition political party comprising a handful of members in the National Assembly has approached the Constitutional Court to seek an order directing Speaker Baleka Mbete to decree that a vote of no confidence in Zuma be done by secret ballot. The rumoured basis for this is that ANC MPs may feel intimidated by their party and not vote freely.

If this is the relief that is sought from the court and it is granted, I believe that our constitutional edifice will be in grave danger. Here is why.

- First, I know of no provision in the Constitution that confers upon a court the power to instruct Parliament on how to conduct its business.

In fact, the Constitutional Court acknowledged this in unmistakable terms last year in the Nkandla judgment when it said: “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 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...

“Courts should not interfere in the processes of other branches of government unless otherwise authorised by the Constitution. It is therefore not for this court to prescribe to Parliament what structures or measures to establish or employ respectively in order to fulfil responsibilities primarily entrusted to it. Courts ought not to blink at the thought of asserting their authority, whenever it is constitutionally permissible to do so, irrespective of the issues or who is involved.

“At the same time, and mindful of the vital strictures of their powers, they must be on high alert against impermissible encroachment on the powers of the other arms of government.”

The rules of Parliament confer a discretion on the Speaker regarding the mechanics of how Parliament can go about fulfilling its constitutional obligations.

So, if the Constitutional Court were to order a secret ballot as a mechanism for the vote of no confidence in this president, would that not be an encroachment on the powers of the Speaker and, by extension, Parliament?

- Second, it is reported that Mbete’s response to the application is that she has no discretion to allow a vote of no confidence by secret ballot.

That appears to be an incorrect appreciation by the Speaker of her powers because rule 103 of the parliamentary rules clearly confers that discretion upon her.

- Third, it is one thing for a court to compel a decision maker to exercise her discretion judiciously; it is quite another to compel her to exercise it in favour of the particular wishes of a litigant.

The former is perfectly permissible and happens often. The latter seems to me impermissible as the court may as well make the decision for the decision maker and be done with it all. That would be the beginning of the end for separation of powers.

- Fourth, many South Africans – some for honest and patriotic reasons, others for disingenuous and politically convenient reasons – want Zuma gone. I, too, want him gone because I do not view him as an ethical leader.

But a vote of no confidence in the president has failed at least twice in Parliament, ostensibly because ANC MPs are not keen to vote openly against their president – and themselves.

So, the opposition runs to court to change the voting mechanism in the hope – and nothing more – that the result may be different this time around. This would be a corruption of our constitutional system. We should be careful of running to court to change the rules to remove one president.

What happens when a good, ethical and well-loved president is under siege by his own party, whose members are eager to remove him anonymously so that party apparatchiks can loot state resources without hindrance from a frugal president?

Will we rush to court to have this judgment set aside as being inconvenient, arguing it was meant for Zuma?

- Fifth, if parliamentary rules, or the empowering legislation, or the Constitution is an impediment to the removal of a corruptly propped-up president, does the remedy not lie in amending the rules or legislation or Constitution, instead of adopting a scorched earth approach, which could have constitutionally disastrous implications, for short-term political gain?

- Sixth, and on a pragmatic level, even assuming the Constitutional Court grants this order, the Constitution requires not only the president but also his entire Cabinet and deputy ministers to resign in the event of a successful vote of no confidence. Which of the 70-odd ministers and deputies, and their hangers-on in Parliament, will vote themselves out of a job by secret or any form of ballot? Is the constitutionally questionable gambit worth the not-so-guaranteed prize?

We must face the truth and our own demons. The majority of us made this Zuma bed. We must now lie in it. We knew his shortcomings when we voted for the governing party, knowing he was to be president.

At the time, many of us were eager to rid ourselves of a president we considered “aloof”, “arrogant” and “too clever”. We got what we desired in his place, proudly pronouncing him an “unstoppable tsunami”.

Now that he lives up to our expectations, we want to drag the court into a political problem of our own creation to change the rules to remove him.

This is wrong. That it is targeted against a president with a phobia for former finance minister Trevor Manuel’s amorphous markets does not make it right.

Ngalwana SC is based at the Duma Nokwe Group of Advocates and is a member of the Johannesburg Society of Advocates


Will opposition parties open up a can of worms by asking the court for a secret ballot?

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Read more on:    anc  |  jacob zuma  |  politics

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