The Economic Freedom Fighters party does not want the Constitutional Court to tell the National Assembly or its speaker, Baleka Mbete, what to do, it will argue before that court on Tuesday. All it wants is an order that Parliament must properly investigate the apparent lies told by President Jacob Zuma and figure out if his constitutional failures were serious.
It just so happens that the EFF also has very specific ideas of what that investigation should look like and thinks it is “necessary and appropriate” for the Constitutional Court to “set out the basic features the inquiry should have” – features that, as it happens, would add up to a painful inquisition for Zuma.
Though Zuma will be represented during what promises to be a fierce and complex day of arguments, it is Mbete who is the subject of the challenge brought by the EFF and supported by the Congress of the People, the United Democratic Movement, the Democratic Alliance and civil society group Corruption Watch.
It is Mbete, the EFF argues in its papers, who is responsible for Parliament’s failures on Nkandla. And it is Mbete, the DA charges, who has failed to see that Parliament has proper mechanisms in place to investigate a sitting president.
If the opposition parties succeed, Zuma is the one who will be in the crosshairs.
Even now, the EFF holds, Parliament has done nothing to the hold the president to account for state spending at his Nkandla residence in KwaZulu-Natal. Though he eventually repaid the state R7.8‑million for benefit his family received, there are still important matters to be settled, it believes.
“If just paying back the money absolved the president of further consequences, there would be little incentive on the executive not to fleece the public purse,” the EFF says in court papers.
“The only consequence would be that if the person was caught, they would have to repay the money. It would always be worth the risk to steal money from the state.”
The EFF believes that Parliament had a responsibility to look into Zuma’s handling of the Nkandla saga. Since it failed to do so, it is now up to the Constitutional Court to step in.
If the EFF were to get its way, its court papers show, Zuma would face a multiparty probe, held in public, with “public representatives” beyond parliamentarians. That inquiry would call witnesses, including Zuma himself, to face “meaningful questioning”. Zuma, in turn, would be able to cross-examine witnesses.
The DA’s papers, meanwhile, lay out some of the questions the party may want to put to Zuma during such proceedings. These include why he did not act when he realised state money was being spent to his personal benefit, whether he delayed acting on former public protector Thuli Madonsela on Nkandla findings “to protect his ill-gotten gains”, and whether he lied to Parliament.
The opposition parties have been supported in principle by Corruption Watch, a body launched with a seed grant from trade union federation Cosatu, which has applied to act as a friend of the court.
“Irrespective of whether the Nkandla debacle involves corruption or not, it is important that Parliament performs its oversight function in such a way that it reduces the opportunity for corruption and malfeasance,” Corruption Watch director David Lewis says in its application.
Instead, “Parliament had done little to nothing” when Zuma mishandled Madonsela’s damning report on Nkandla. And that failure to act must be laid at Mbete’s door, Lewis argues, saying “her conduct warrants sharp censure and remedial intervention by the Constitutional Court”.
But Mbete’s written responses hold the promise that her legal team will come out swinging on Tuesday. They describe the EFF application as “opportunistic”, “devoid of truth”, and arising from the failure of opposition parties to unseat Zuma by a vote of no confidence.
“I am concerned that this application seeks to invite the court to descend into the political arena, in circumstances where the Constitution does not so permit,” Mbete says, warning that the Constitutional Court “is not empowered” to prescribe how a president should be held to account.
Beyond that, Mbete argues that Parliament has held Zuma responsible while acting within its rules – and that she does not have the power to go beyond what has already been done.
“I cannot delegate an external process not sanctioned in the Constitution or the [National Assembly] rules,” she says of the EFF’s demand for a Zuma probe.
Zuma often faces questions put by MPs, Mbete argues, many of which have revolved around Nkandla.
Her written arguments do not deal with the opposition parties’ contention that it was exactly in answering such questions that Zuma mischaracterised findings on Nkandla, made statements that later turned out not to be true and otherwise seemed to lie without consequences.
But as much as the EFF wants Parliament guided in such matters, it is just not up to the Constitutional Court, Mbete’s team is due to argue.
“It is not for this court to micro-manage or babysit the [National Assembly]; nor is it the function of this court to dispense advice to the NA [National Assembly] or its members,” her heads of argument read.
The peculiarity of a vote without a trial
President Jacob Zuma has faced many attempts by opposition parties to remove him from office, including for reasons touching on the Nkandla scandal, speaker Baleka Mbete has told the Constitutional Court, and that in itself proves he has faced consequences for his actions.
But Parliament has never held a vote on Zuma that is properly informed by the facts, opposition parties and Corruption Watch counter, adding that this shows just how badly Parliament’s processes are broken.
Parliament never established a fact-finding committee on Zuma and Nkandla, Corruption Watch argues. “Comparatively, all foreign Parliaments use a fact-finding process to investigate impeachment allegations against sitting presidents and, in the view of Corruption Watch, it is the only process in terms of which proper accountability can eventuate.”
From South Korea to Brazil, there are examples of impeachment proceedings that involve an investigation, other parties say in written submissions. Yet examples go beyond that, the Democratic Alliance says in a subsequent submission. “Examples from other African countries also show that trial-like processes almost always precede a vote on impeachment” — even in countries with less than ideal reputations for their democratic systems, such as Zimbabwe and Egypt.
“These examples show substantial variation in the way that investigations and hearings are conducted in each country,” DA federal chairperson James Selfe said in an affidavit. “However, all of these other African countries recognise the need for these investigations and hearings.” — Phillip de Wet