Why Zuma is still president after violating the constitution

2016-06-07 09:54

**This article reflects on the problematic of the separation of powers doctrine and why we may need to open discussion on some of its aspects. The failed Zuma impeachment in April serves as a case study.

The predictable outcome of the impeachment debate demonstrated why there is a constitutional crisis in South Africa at the present moment. Perhaps an interesting question to ask is whether it is desirable for the National Assembly to be entrusted to action the removal of a president when he is in "serious violation of the constitution or the law". By virtue of our proportional representation electoral system, it is inevitable to see the abuse of majoritarianism in the National Assembly to close ranks around the president. If the opposition takes up litigation on the failed impeachment attempt, it will without doubt be to have the Constitutional Court judgment firmly affirmed as saying that the president violated the constitution and is in breach of his oath of office. Yet, even so, it is hard to believe that any court could direct the National Assembly to remove the president and in the absence of this we would be back to square one.

Whilst the election of the president is within the purview of the national assembly, the finding on “serious violation of the constitution or the law” falls squarely on, and is the competence of, the judiciary. However, a National Assembly politically submerged and compromised by party politics of the state president – by virtue of his party holding a significant majority in the national assembly and the president enjoying high political influence in his party – cannot be expected to vote the president out of office. In such a majoritarian set up, there is no punishment for committing transgressions amounting to section 89(1)(a) of the constitution. The only recourse would exist if the president is incarcerated as a result of “a serious violation of the constitution or the law”.

Given that the removal of the president by s89(1) requires that such a resolution be adopted by the National Assembly with “a supporting vote of at least two thirds of its members”, the founding fathers and mothers of our constitution envisaged a situation wherein even party members (especially when constituting majority of the National Assembly) of the seating president would vote against him or her in good conscience. Too great a trust is bestowed upon Members of Parliament to act in the interests of the constitution. The courts, due to the doctrine of separation of powers, are not given the power to remove the president even if they find him or her to be in violation of the constitution. In our instance, at the most extreme, courts could direct the National Assembly to remove the President. But what if his party members dig their heels too deep in defiance of such an order? What would be remedy for such contempt of court be?

When at the crossroads of politics and legality, politics tend to win when the politicians faced with a choice elevate the good standing of party political dynamics before the interests of the country. This was observable during the impeachment proceedings in our National Assembly. So arrogantly submerged in the politics of the president, the ANC did not even need to send its so-called big guns to the debate and gave juniors, excepting John Jeffery, the chance to defend the president. The lack of appreciation for the moment and the deliberate misreading of the constitutional court judgment by the ANC forces us to question the constitution’s logic around the issue on the removal of the president when he is in “serious violation of the constitution or the law”. The sanction for this transgression must perhaps rest with the judiciary itself.

For the president to violate, seriously, “the constitution or the law” it is most likely that the National Assembly would have been accomplice to such violation – as it was the case with the Nkandla fiasco. The president can make mistakes (no one is perfect) but for these mistakes to accumulate to a point that recourse would be sought in our judiciary, it means that the National Assembly would have failed to provide remedy for the mistakes of the president. Bluntly put, the National Assembly would have failed to hold the President accountable and ensure that he fulfils his duties expeditiously and with the highest regard for our constitution. It is somewhat illogical to then expect a 180 degrees turn in ethical conduct from such a National Assembly, especially the majority party MPs, because political party considerations would have been elevated before the welfare of South Africans.

For this reason, I believe national debate is necessary to check the desirability of s89 as it currently stands. Our courts are competent to give both verdict and sentence. It must be a sentence, given by the courts, as an instruction that a president who has been in “serious violation of the constitution and the law” must resign. Leaving the duty to sentence the president (through removal) to the political arena of the National Assembly could – as it is currently – easily introduces a constitutional crisis. A seating president that has violated the constitution deserves no respect from citizens and enjoys very little authority over any citizen. Now that the National Assembly has failed, the duty rests with South Africans to be their own liberators by taking to the streets and demanding the president to resign.

But it must be remembered that the Constitutional Court is the custodian of our constitution. It is for this reason I am convinced they must be able to exercise powers that protect the constitution from those that violate it and when this person is the president and he or she has violated the constitution by abusing the powers vested in their office, perhaps the best thing is to remove the said person. This removal, I contemplate, must be in the form of a sentence by the Constitutional Court. I know the delicacy of the separation of powers doctrine, but we must have even the most delicate of discussions in the public domain.

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