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[Archives] How do we impeach a president?

In court papers filed on Thursday, opposition parties asked the Constitutional Court to order Parliament to put a mechanism in place to investigate whether “the president has made himself guilty of an offence or inability”, which would warrant the exercise of Parliament’s impeachment powers.

The Economic Freedom Fighters (EFF), the Congress of the People (Cope) and the United Democratic Movement (UDM) have also asked the court to declare that Parliament failed to put processes in place to hold President Jacob Zuma to account for breaching the Constitution when he did not implement the public protector’s Secure In Comfort report on the R246-million upgrades to his Nkandla home.

Section 89 of the Constitutionprovides for the removal of a president with a two-thirds majority vote in Parliament on three possible grounds: a serious violation of the Constitution or the law; serious misconduct; or inability to perform functions of the office. This provision has never been used.

The mechanism is different in section 102 of the Constitution, which allows for a motion of no confidence in the president which, if passed by a simple majority in Parliament, would mean the president must resign, along with his Cabinet.

Section 102 does not require any misconduct or incapacity. It is viewed more as a mechanism for the majority party to recall its president if it has lost confidence in him. In both cases, the president is removed — but with impeachment he loses his pension, all his ex-president benefits and cannot occupy any public office.

Attempts by the Democratic Alliance (DA) to pass motions of no confidence have all failed in the past. But both the DA and EFF announced this week that they would be asking for a debate on motions of no confidence in President Jacob Zuma over his decision to fire former finance minister Pravin Gordhan.

The court case — by the EFF, UDM and Cope — is specifically directed at Parliament’s failure to follow up on the ConCourt’s Nkandla judgment last year. The judgment found that Zuma had acted unconstitutionally in not implementing remedial action directed by the public protector on the Nkandla upgrades.

But Zuma’s Cabinet reshuffle late on Thursday night has led to an outcry and exposed fissures in the ANC.

The idea that these removal mechanisms may be triggered at this point is less inconceivable now than it ever has been before.

For an impeachment, the Constitution requires that the breach must be “serious” — a recognition that some breaches are not serious.

The ConCourt has found the president to be in breach of the Constitution several times. For instance, the appointment of Menzi Simelane as national director of public prosecutions was found in court to have been unconstitutional.

The highest court has made findings of constitutional breaches against Thabo Mbeki and Nelson Mandela.

The question then becomes: What kind of breach is “serious” and warrants impeachment?

In their court papers, EFF leader Julius Malema differentiates between the Nkandla transgression and other breaches: “This is not an ordinary transgression of the Constitution by the president in his official capacity, as typically happens whenever the president is found to have somehow breached the Constitution by a court of law.

“This is an instance where the president’s violation concerns his own personal interests and benefit. The president has unduly enriched himself. In doing so, he has acted in breach of his own oath of office,” said Malema. 

“He has prima facie committed a serious act of misconduct.”

In the Nkandla judgment, the Constitutional Court did not declare that Zuma had breached his oath of office, only that he had breached the Constitution. It also deliberately left open the question of whether he had acted in bad faith.

“He might have been following wrong legal advice and therefore acting in good faith,” the court said.

“But that does not detract from the illegality of his conduct.”

However, section 89 does not appear to require a court order to trigger an impeachment process. It does not say, “Upon a finding by a court of a serious violation”. Nor does a serious violation finding by a court automatically mean an impeachment process must follow. Section 89 says the National Assembly “may” remove the president.

In his affidavit, Malema identified three instances in which Parliament had “failed” in its oversight and accountability role. One of these was a failure to investigate whether the president misled Parliament about whether he knew about the government spending on the non-security upgrades.

Malema said that the ConCourt “left the question of [Zuma’s] awareness open, with respect, correctly. It was for the National Assembly to ascertain the question, one way or another.”

What Parliament cannot do, said Malema, is do nothing. 

“It cannot reasonably and rationally be left open forever by a National Assembly which is serious about discharg ing its constitutional duties,” said Malema.

The EFF, the UDM and Cope want the highest court to decide that, in the face of such “serious” transgressions, Parliament must do something. But the exact mechanism to investigate and decide whether there was impeachable conduct would be up to Parliament to decide — in deference to the separation of powers between the executive, legislature and judiciary.

But, ultimately, both a motion of no confidence and an impeachment motion are quintessentially political processes that boil down to numbers; with a simple majority sufficing for a no confidence motion and a two-thirds majority necessary for impeachment. With the ANC’s 62% majority in Parliament, if either of these two processes are to succeed, it is ultimately a matter of political will and depends greatly on the internal struggles within the ANC.

Parliament must call Zuma to account, says Malema
By failing to hold President Jacob Zuma to account, Parliament was “perpetuating a culture of impunity and unaccountability,” said Economic Freedom Fighters (EFF) leader Julius Malema in court papers filed on Thursday.

The EFF, Cope and the UDM have asked the highest court to compel Parliament to hold the president to account after its Nkandla judgment.

The Nkandla judgment in March last year found that remedial action directed by the public protector was binding unless it was set aside by a court. By failing to implement the remedial action directed by former public protector Thuli Madonsela in her Secure in Comfort report, Zuma had breached the Constitution, said a unanimous ConCourt.

In 2014 Madonsela found that the president had unduly benefited from the non-security-related upgrades to his Nkandla homestead, such as the swimming pool and visitors’ centre. She directed Zuma to pay back a reasonable portion of the cost of these.

The ConCourt also found that Parliament, by absolving the president from complying with the remedial action, breached its duty to hold the executive to account.

“Some six months after the Constitutional Court delivered its judgment, the National Assembly remains silent. The president has not been held to account,” said Malema.

Parliament had a duty to require Zuma to account. “The president is, in the words of the Constitutional Court, the first citizen of this country. He is specifically obliged to uphold, defend and respect the Constitution,” said Malema.

Letters to the speaker requesting action fell on deaf ears, he said. Malema said the EFF accepted that Parliament should be afforded a “margin of appreciation” for the manner in which it holds the president to account, and was not asking for any specific mechanism.

“But this court is entitled — and, with respect, constitutionally obliged — to ask whether Parliament has put in place any accountability mechanisms at all. The answer is no.”

The opposition parties have asked the speaker and the president to respond within 15 days.

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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