/ 3 April 2014

Mazibuko and how (not) to impeach a president

Mazibuko And How (not) To Impeach A President

When Democratic Alliance (DA) parliamentary leader Lindiwe Mazibuko called for the head of President Jacob Zuma last month, it was hardly a bolt from the blue. In December last year, she promised to have him impeached if evidence emerged that Zuma lied to Parliament about public works conducted at his private residence in Nkandla.

"It would require the putting together of an ad hoc committee to investigate whether or not the president deliberately misled the House. The critical word here is deliberately", she said.

She repeated her pledge during the debate on the president's State of the Nation Address, that if Zuma was implicated in any wrongdoing relating to the Nkandla upgrade, "I will not hesitate to table a motion to impeach him in this House".

And hesitate she did not.

Public protector Thuli Madonsela barely concluded her four-hour press conference on the outcome of her investigation into Nkandla, when Mazibuko stapled the full 400-page report, "Secure in Comfort", to the back of a seemingly pre-drafted motion to impeach the president.

In her haste, she might not have noticed that, although the report does conclude that Zuma benefited improperly from state spending on personal amenities, including an amphitheatre and swimming pool, and that Zuma misled Parliament when he denied this, it does not include the word "wilfully".

That is the term employed in the executive ethics code, which Zuma signed into law as acting president in 2000. This matches Mazibuko's understanding that the "critical word" in any impeachment proceedings would be "deliberately".

'Bona fide mistake'
Madonsela found, on the contrary, that Zuma made "a bona fide mistake" when he told Parliament he had not been enriched at public expense, and therefore he did not breach the ethics code in that respect. He was, however, found to have violated the code by failing to protect state resources, as he should have taken steps as early as December 2009 to "order an immediate inquiry into the situation and immediate correction of any irregularities and excesses".

These findings are reflective of the report as a whole, which reads as a horror story of endemic institutional maladministration, rather than an indictment of individual corruption on the part of the president.

Mazibuko, however, had apparently already pinned her electoral colours to the corruption mast, and sought to impeach Zuma on the basis that he "abuses public office for personal gain".

But hasn't she tried this before? Well, sort of.

In late 2012, Mazibuko led a motion of no confidence in Zuma, citing the "rising tide of corruption" exemplified by the Nkandla scandal among the reasons for his removal. Mazibuko was denied permission to table the motion by Parliament's programming committee, headed by speaker Max Sisulu, so she took Sisulu to court, seeking an order compelling him to table the motion urgently.

Ultimately, Mazibuko did not get the order she wanted, but the Constitutional Court did declare last August that Parliament's rules were unconstitutional to the extent that they precluded the "unhindered exercise by a member of the Assembly, acting alone or in concert with other members, of the right to have the Assembly schedule, deliberate and vote on a motion of no confidence in the president".

The court found that the "vital constitutional entitlement to move a motion of no confidence in the president cannot be left to the whim of the majority or minority in the programme committee or any other committee of the assembly", and gave Parliament six months to correct the defect.

As a result, revised rules were adopted in February this year, allowing any member of Parliament to have a motion of no confidence scheduled, debated and voted on within a reasonable period of time.

Motion of no confidence
Despite this progress, Mazibuko never renewed her motion of no confidence in Zuma, as she no longer seeks only to remove him from office. Instead, emboldened by the public protector's report, Mazibuko aims to have him removed from politics permanently.

While a motion of no confidence (under section 102 of the Constitution) only requires the support of just over half of the members of Parliament, it only results in the resignation of the president and Cabinet.

Impeachment (under section 89), on the other hand, requires the support of at least two thirds of the members of Parliament, and is available only on the grounds of serious misconduct, a serious violation of the Constitution or the law, or outright inability to hold office. This is because impeachment deprives the president of all benefits accorded to former presidents, and disqualifies him from ever holding any public office again.

So, impeachment is a much more potent tool, but is much less likely to succeed.

Even Mazibuko's motion of no confidence in 2012 was widely considered to be a losing bet, when she only needed to convert a few dozen disgruntled ANC back-benchers. Her latest motion would require her to charm about half of the ANC caucus on the eve of their re-election.

If Mazibuko were able to do so, she could just as well wait for May 7 2014 and get them to give her the presidency then. So why is she placing so much pressure on the speaker to table the motion immediately, when it is even less likely to succeed than the last?

Perhaps this is more of a gambit than a gamble. Perhaps Mazibuko takes heart from former US politician Robert Kennedy's advice that "only those who dare to fail greatly can ever achieve greatly". Perhaps she believes that, since she can only hold an imaginary weapon over the president's neck, she may as well imagine the sharpest and heaviest weapon the Constitution can offer.

Ben Winks is a visiting researcher at, and Garth Duncan is a graduate of, the University of Johannesburg's faculty of law.