President Jacob Zuma got through his questions session in the National Assembly last week
One can deduce from her actions that Baleka Mbete, chairperson of the ANC and fierce defender of Jacob Zuma, believes the president made himself guilty of a serious violation of the Constitution, Mbete’s advocate Hamilton Maenetje told the Constitutional Court on Tuesday.
Yet that does not mean Zuma should be removed as president, or even further investigated by the Parliament that elected him. Quite the contrary: it is exactly because Zuma was so clearly in breach of the Constitution that nothing more needs to be done on that score, Maenetje contended. After all, based on that knowledge, Parliament had already voted on Zuma, and chosen to retain him as president, so the matter is closed.
Opposition parties do not even remotely agree.
“This case really is about what should happen in the light of the fact there is an indisputable prima facie case for impeachment,” advocate Tembeka Ngcukaitobi told the court on behalf of the Economic Freedom Fighters. “What we propose is a precursor to the impeachment.”
A “serious violation of the Constitution or the law” is one of three grounds on which a president may be removed from office. Such a removal requires a two-thirds majority vote in the National Assembly. Unlike a motion of no confidence (which requires only a simple majority), impeachment strips the president of benefits and bars him from all public office forever.
At the end of March 2016 the Constitutional Court found that Zuma had “failed to uphold, defend and respect the Constitution as the supreme law of the land” in the way he dealt — or rather, failed to deal — with a report by the public protector on Nkandla.
At that point, the EFF believes, Mbete should have of her own accord launched an investigation into Zuma’s conduct, in preparation for an impeachment vote. Instead, even when the EFF asked for such an investigation, Mbete refused.
Neither the Constitution nor the rules of Parliament make provision for such a fact-finding exercise. But “to impeach on the basis of misconduct, unlike the motion of no confidence situation, you cannot escape the fact-finding stage,” advocate Dali Mpofu said on behalf of the Congress of the People and the United Democratic Movement, which supported the EFF’s application.
The EFF argued that Mbete had at her disposal the tools to set up such a fact-finding exercise, but had failed to do so.
The Democratic Alliance’s position was different. It said Parliament lacked the rules and processes to hold a president to account.
On Monday — barely more than 24 hours before Tuesday’s hearing — deputy speaker Lechesa Tsenoli submitted an affidavit to refute the DA’s position, saying a parliamentary committee could have done exactly what the opposition parties wanted to see happen.
“The removal of a president is not an everyday affair and an ad hoc committee is eminently suitable,” Tsenoli wrote in his submission, made on Mbete’s behalf because she had travelled to Iran after missing a deadline to send her answer to the DA. Tsenoli then briefed a new legal team to respond, a team that started work on the matter only during the course of Friday.
The speaker and her deputy seemed to have starkly different approaches, characterised as a complete about-turn by the DA and Corruption Watch, there as a friend of the court.
In answering the EFF’s claim that she had failed the country by taking no action against Zuma, Mbete listed a range of accountability mechanisms available to MPs, some of them — such as formal questions to Zuma — actually exercised. An ad hoc committee came last on her list, and that was the only time she mentioned such a committee in her submission.
In his affidavit on Monday, Tsenoli referred to ad hoc committees 34 times — and Maenetje said the responsibility for establishing such a committee rested with the opposition parties now blaming Mbete for inaction.
“The speaker doesn’t have the power to set up committees, they [the opposition parties] must request it.”
But when a president needs to be impeached the situation is by its nature urgent, advocate Steven Budlender told the court on behalf of the DA — and setting up an ad hoc committee isn’t fast. First there must be agreement on everything from whether the president would be cross-examined to whether the committee would work on a balance of probabilities or seek evidence beyond a reasonable doubt; “a whole series of procedural debates that have to happen just to set up the committee”.
Then the work of the ad-hoc committee must be scheduled, and scheduling is at the mercy of the chief whip of the ruling party. Unless the whip agrees, said Budlender, a committee “can never get out of the starting blocks”.
If the goal is to unseat an unsuitable president, this is just one of a number of hurdles, the proceedings suggested. Opposition parties allege that Zuma lied to Parliament about Nkandla, and failed to answer subsequent questions about it properly, Chief Justice Mogoeng Mogoeng pointed out on Tuesday. If the opposition got an inquiry, why does it believe Zuma would tell the truth this time?
Well, at least there is a better chance, said Mpofu. An inquiry is different to a question-and-answer session in the National Assembly. “Nobody is going to switch off the mic in an inquiry. Nobody is going to call the white shirts [Parliament’s bouncers] in an inquiry. Nobody is going to say ‘you asked the question and it has been responded to’,” as Mbete has done.
Another problem was raised by the chief justice: assuming the opposition get an inquiry, and assuming it finds Zuma in gross violation of the Constitution, that does not mean he must be impeached. A conviction for murder, as long as the sentence is suspended, would not automatically disbar a president, Mogoeng suggested on Tuesday. Similarly, a conviction for corruption without prison time would not necessarily do it either, added Maenetje.
And a final vote to impeach is an inherently political act, everyone agreed, so impeachment is never guaranteed.
Yet even if there is no prospect of removing Zuma from office, the process remains important, argued Ngcukaitobi for the EFF. “The problem today is that the speaker is simply allowing the president to go scot-free,” he said.
Put differently, people have to know whether or not their president is a crook, said Mpofu, paraphrasing former United States president Richard Nixon.
Even if the people’s representatives in Parliament then decide to keep the crook in office.
Judgment was reserved.