Zuma 'failed to uphold the constitution' – what now?

By Gabisile Ngcobo
31 March 2016

The Constitutional Court's Nkandla ruling shows that President Jacob Zuma is not a worthy leader, says political analyst Ralph Mathekga.

Seven years after construction started on the controversial homestead, numerous rebuttals, investigations and back and forths President Jacob Zuma finally has a definitive answer: He has to pay back the money.

The Constitutional Court's Nkandla ruling shows that President Jacob Zuma is not a worthy leader, says political analyst Ralph Mathekga.

“The President has been getting weaker gradually but he has been holding on,” Mathekga told YOU.

Chief Justice Mogoeng Mogoeng said in the unanimous judgment found that Zuma had failed to defend the Constitution when he did not comply with Public Protector Thuli Madonsela’s report on non-security features in his Nkandla homestead.

The court also found that the remedial action contained in the Public Protector’s report released in 2014 is binding.

As such, the president must “personally” pay the amount determined by the National Treasury within 45 days for the non-security features: the visitors’ centre, the amphitheatre, the cattle kraal, the chicken run and the swimming pool.

While the Minister of Finance Pravin Gordhan may be seen to have an upper hand in determining the exact amount Zuma will have to pay, Mathekga doesn’t think that it’s a job he’s happy to do for the mere fact that he’s the president from his own party.

“It’s embarrassing to even for those who hate Zuma," he explains.

“I think with this judgment it’s a very historical moment of evidence that demonstrates he’s not a worthy leader and shouldn’t be kept,” Mathekga said.

In principle, Mathekga believes that South Africans should be satisfied with the state of democracy because the court’s “fearless and well-argued decision” but citizens should be concerned at the same time.

Handing down the judgment this morning, Chief Justice Mogoeng also criticised the Police Minister Nathi Nhleko’s report and the National Assembly’s resolution and declared them inconsistent with the Constitution and invalid.

It also found that the National Assembly failed to fulfil its constitutional obligations to hold the President accountable to ensure the “effectiveness, rather than subversion, of the Public Protector’s findings and remedial action”.

Mathekga added, “I think it’s a very strong judgment and South Africans should be happy with that.

"But I think also, there should be concerns as well because if you as the head of the executive, the sitting of the executive, has violated the Constitution and parliament have done the same thing it raises concerns about the strength of democracy."

“Democracy shouldn’t depend only on the court but it should also depend on the willingness of other institutions that are supposed to provide checks and balances on each other to function.”

What will the ANC do? 

Mathekga believes everything hinges on what the ANC will do next.

“The issue and the question here is that is the cost of keeping Zuma for the ANC if it’s so high that they can’t continue with him for the party? And if the party continues with him, we must ask the question, who else is involved?”

“If the party protects him the party becomes an accessory to the process of violating the Constitution. And that for me is silly.”

He says this ruling will make it difficult for Zuma’s loyalists to come out and defend him.

“I’m watching closely now about what kind of explanation is the ANC going give. What are they going to say because it’s not the executive that’s comprised but parliament as well? It’s quite significant.”

According to the Constitutional expert Professor Pierre de Vos, the Constitutional Court cannot order the impeachment of the president. Only the National Assembly can do that

“… It is the leadership of the ANC (and not the EFF, DA or ANC members of the National Assembly) that will decide what political action – if any – should be taken against the President,” De Vos wrote on his blog.

“The Court does not have the power to order impeachment because ultimately voters (and not unelected judges) decide who governs the country.”

De Vos says it’s the hands of the members of the National Assembly will have to decide whether they wish to remove the president from office “although in practice the decision will be taken by the ANC leadership and not by the National Assembly”.

“When making such a decision the governing party will have to decide whether they will be punished by voters if they fail to act. If the governing party believes it will not be punished by voters if it does not act, it would be perfectly within its powers not to act at all – regardless of how serious the findings of the Constitutional Court may be,” De Vos wrote.

Mathekga says impeachment is a political process that should be undertaken in parliament and it can be very complex.

While the opposition parties may have a stronger case to make, it’s up to the ANC whether it will listen or not.

“The word impeachment is not part of SA’s narrative, it’s an American idea, but in SA, if you lose confidence you vote him out of power. They can pass a vote of no confidence.”

However, he doesn’t think the ANC would vote for the motion that has been tabled by the opposition party.

“So, the parliamentary route is out altogether.”

The ANC, however, can ask the president to resign and they don’t have to go to parliament for that.

Zuma’s tenure has been far from scandal-free, and the ANC has recently announced that they’re going to investigate whether Zuma’s relationship with the Gupta family has started a process of “capture of the state”.

“They can convince him to resign and doesn’t have to go to through the embarrassing process of parliament where the opposition can claim victory.”

Find Love!