By RANJENI MUNUSAMY
Last week’s damning Constitutional Court judgment on the Nkandla matter found that President Jacob Zuma had “failed to uphold, defend and respect the Constitution”. Zuma’s acting inconsistently with his constitutional obligations constituted “illegality”, the court said. There is no way this judgment can be ignored as the violation of his oath of office calls into question Zuma’s legitimacy as president.
The section of the Constitution that provides for the removal of the president is brief on detail on the process towards an impeachment. It simply states that the National Assembly through a resolution supported by at least two-thirds of the members may remove the president from office. The only grounds for removal are:
a. a serious violation of the Constitution or the law;
b. serious misconduct; or
c. inability to perform the functions of office.
Standing outside the Constitutional Court on Thursday, minutes after Chief Justice Mogoeng Mogoeng read out a comprehensive judgment on the powers of the Public Protector and the conduct of President Jacob Zuma and the National Assembly, Democratic Alliance (DA) leader Mmusi Maimane announced that he had filed an impeachment notice with the Speaker of Parliament. Maimane said Zuma’s actions amounted to a serious violation of the Constitution and therefore met the grounds for impeachment.
On Friday the ANC’s top six officials met to discuss the judgment and that evening, Zuma apologised for the “frustration and confusion” around the Nkandla matter. He also said he “never knowingly or deliberately set out to violate the Constitution”. The ANC accepted both Zuma’s explanation and apology later that night and at an extended national working committee (NWC) meeting on Monday.
Meanwhile Speaker Baleka Mbete agreed to the Maimane’s impeachment motion and the debate was scheduled for Tuesday. DA leaders campaigned on social media for ANC MPs to vote with their conscience to remove the president. Because of the time limitation, it was not possible to consult other opposition parties or build public support for the impeachment motion.
While the DA was making public calls about how ANC MPs should vote along with them to uphold the Constitution, there was no opportunity to lobby them individually. The DA was also making public calls for a secret ballot, in the belief that given the opportunity, some ANC members would support the impeachment vote.
Because the resolution needed to be adopted with a two-thirds majority, the DA required all the opposition parties and a substantial number of ANC MPs to vote in favour. But because of the time constraint, it was not possible to even argue for a secret ballot in the National Assembly or meet with any ANC MPs to convince them of their argument.
Other opposition parties were locked in the DA process and also had no room to manoeuvre. One senior opposition party leader said they could not contact anyone in the ANC on Monday because they were in the NWC meeting and then in a caucus meeting on Tuesday before the debate. Some opposition parties had reservations about supporting the DA motion because it was destined to fail without time to canvass support more broadly.
The DA stuck to its guns that they had to act to defend the Constitution and had to go ahead with the motion on principle, regardless of the fact that they did not have the numbers to win the vote. By leaping ahead with the motion, they also prohibited preliminary processes that could have built towards the impeachment debate.
For example, opposition parties could have lobbied for the National Assembly to set up an ad hoc committee to consider the Constitutional Court judgment. While the ad hoc committee would have been dominated with ANC MPs, as was the case with the Nkandla ad hoc committees, the process would have allowed a full interrogation of the judgment and its implications. They might even have lobbied for Zuma to be summoned to the committee. His refusal to do so would have strengthened the argument for action against him.
The quick impeachment debate also did not give the ANC’s new chief whip Jackson Mthembu time to settle in and define the approach for his caucus. Mthembu has been signalling that he wanted to take Parliament on a new, less-confrontational path. But on his first day in the job, the ANC caucus was forced to close ranks behind Zuma.
With the ANC officials and NWC pronouncing on the matter, it was not possible for individual MPs to vote in favour of the impeachment resolution without defying the party.
Had ANC MPs voted contrary to their party position, the next step would be for them to resign. People like Finance Minister Pravin Gordhan and his deputy Mcebisi Jonas came under fire on social media for voting against impeachment motion. However voting in favour would have put them in conflict with the ANC and provided their detractors with the ammunition they need to lobby for their firing. With so much pressure currently on them, such a move would have been suicidal and detrimental to the country’s economic stability.
Consultations between the opposition parties before the debate resulted in an agreement to work together to pursue further action. Maimane, flanked by Economic Freedom Fighters leader Julius Malema, United Democratic Movement leader Bantu Holomisa and Congress of the People’s Mosiuoa Lekota, among others, announced outside Parliament that the opposition parties would be writing to Mbete on Wednesday to request that Parliament institute a disciplinary process against Zuma. It is not yet clear what form the disciplinary process could take. Maimane said they would explore all options to ensure that the Constitutional Court judgment is acted on.
Earlier in the House, Malema threatened Mbete with legal action when she refused to recuse herself from presiding over the debate. He said she was not a credible Speaker and was conflicted. Other opposition parties supported the EFF’s argument that Mbete had been compromised by the Constitutional Court judgment.
Even though the impeachment motion failed, the legitimacy of the president as well as the Speaker still hangs in the balance. Before the debate began, the presidency issued a statement saying the office wanted to correct media reports that the Constitutional Court found that Zuma broke his oath of office.
“The Constitutional Court did not make such a declaratory order. In fact, whereas the counsel for the EFF, the Applicant, specifically asked for the Constitutional Court to declare that the President had acted in violation of his oath of office, the Constitutional Court did not grant a declaratory order in those terms,” the presidency said.
This is one of the crutches the presidency and the ANC are relying on to navigate the crisis. Speaking during the impeachment debate, Deputy Minister of Justice John Jeffery said the Constitutional Court ruling that Zuma had acted inconsistently with the Constitution did not amount to a “serious violation”.
“Whether the DA likes it or not, there is a difference between inconsistency and a serious violation of the Constitution,” Jeffery said. He also claimed that Zuma had never acted in bad faith and that even former president Nelson Mandela had been found to have acted contrary to the Constitution.
In the ANC’s continued defence of Jacob Zuma, it seems any and everybody can be thrown under the bus – even Nelson Mandela.
The ANC and Zuma came in for a heavy drubbing during the debate, while three fairly junior speakers for the ruling party, Jeffery, Pule Mabe and Mmamoloko Kubayi, mounted a weak fight back.
Maimane told ANC MPs “every time you defend your president, you send out a signal that the ANC is rotten to the core”. “Today, when ANC MPs defend President Zuma and his corrupt acts, they will show that they are complicit in the spread of the disease,” Maimane said.
Malema petitioned some of the ANC MPs, including Deputy President Cyril Ramaphosa, Gordhan, Jonas, and South African Communist Party leaders Blade Nzimande and Jeremy Cronin to vote in favour of the Constitution. “If you can’t listen to us, listen to (Ahmed) Kathrada, (Dennis) Goldberg, the real generals of Umkhonto we Sizwe,” Malema said, referring to former ANC leaders and veterans who had spoken out calling for Zuma to step down.
Inkatha Freedom Party’s Narend Singh said Zuma’s “apology” on Friday was a slap in the face of every South African. Holomisa said Zuma’s actions had sunk the executive, the National Assembly and the ANC. He said Parliament should be dissolved and snap elections held. Holomisa also called for a change from the proportional representation system to direct presidential elections.
While Mabe was mocked for repeatedly citing Bible verses to argue against punitive action against Zuma, his colleague Kubayi tried to compare the Constitutional Court judgment to Malema’s attack on a BBC journalist when he was the leader of the ANC Youth League. She also referred to Public Protector Thuli Madonsela’s son crashing a state car though it was not clear how this related to Zuma’s violation of the Constitution.
In the end, the House voted with 143 MPs supporting the impeachment motion and 233 against. This means the National Assembly still has to come up with an adequate response to the Constitutional Court judgment as the matter cannot be swept under the carpet.
On Tuesday former finance minister and ANC national executive committee member Trevor Manuel told SowetoTV that <a href=”http://www.dailymaverick.co.za/article/2016-04-05-post-concourt-nkandla-ruling-bombshell-trevor-manuel-joins-the-calls-for-zumas-resignation/”>Zuma should step aside</a>. He said the Constitutional Court ruling that Zuma had breached his oath of office was a “deep crisis”.
“I think it is in all of our interests that the president actually steps aside,” Manuel said.
With the ANC trying to contain the internal combustion and growing public anger, who knows what might have happened had there been a different strategy building towards the impeachment proceedings? The opposition now has to chart a more difficult course to argue for Zuma to face disciplinary proceedings. Meanwhile civil society organisations are now mobilising to demand the removal of the president.
South African politics is now entering unchartered territory of hostility and mobilisation against a sitting president and a compromised Speaker of the National Assembly. The ANC is arguably at the weakest point in its history as a result. Yet it is battling to self correct. Even after a walloping by the Constitutional Court and a public lash back, protecting Zuma seems to be the ANC’s core function. In months and years to come, the ANC will live to regret this.
- Daily Maverick