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AS ZUMA’S NINE LIVES RUN OUT, THE END OF CONSTITUTIONAL DELINQUENCY BECKONS, HOPEFULLY
Tshepang Edwin Makwati is an LL.D in International Law Candidate at the University of Johannesburg, South Africa. He holds an LL.M and an LL.B from the same University.
On the 14th of February 2018 President Jacob Gedleyihlekisa Zuma resigned, having been recalled by his party, the African National Congress (ANC) and with an impeachment hanging over his head. He was caught in a political checkmate of his scandalous tenure. The episode demonstrated that the South African Constitution has proven to be a potent weapon in the hands of the courts against despotism, corruption, state capture and everything undesirable in a constitutional democracy. This post discusses how the constitutional framework, in combination with ANC party dynamics, led to Zuma’s removal, couched in the wider issue of how to distinguish between party interests and the national interest.
A Seemingly Invincible President
Section 83(c) of the Constitution of the Republic of South Africa, 1996 (the Constitution) endows the president with the responsibility to “uphold, defend and respect the Constitution as the supreme law of the Republic.” On a perusal of several court judgments against President Zuma, it does appear that the man with nine lives was either incognisant of his obligations towards the Constitution or deliberately violated it in the hope that such conduct would not have consequences. It does hold true that impunity begets expectation of further impunity and Zuma might be forgiven for believing in his own invincibility, having been dubbed the extraordinary strategist by some commentators given his political wit and ability to survive ordinarily political career-ending scandals. Having ascended to the highest office on the backdrop of high level corruption charges which were eventually dropped, irrationally so, by the then National Director of Public Prosecutions and making a dramatic political comeback after he was fired as Deputy President by Thabo Mbeki, Zuma might have believed in his own invincibility. However, the constitutional framework ultimately provided a mechanism for his removal.
Removal of a President according to the Constitution
South Africa’s Constitution provides for two ways by which a president may be removed from office. In terms of section 89, a president can be removed if two thirds of members vote in favour of a resolution adopted by the National Assembly to effect such removal. This may be the case where the president is guilty of conduct that amounts to serious violation of the Constitution or the law, serious misconduct and/or inability to perform the functions of office. Removal using this provision means that the impeached president forfeits any benefits as a former head of state and government and may never again hold public office.
The other constitutional means to remove a president is through section 102(2) which states that, if the National Assembly by a simple majority (50% plus 1) passes a motion of no confidence in the president, the president must together with their cabinet, resign. A president removed under this provision does not lose their benefits and may subsequently hold other public office. It is this route that was charted on eight occasions, albeit unsuccessfully, to remove Zuma. In essence, although Zuma resigned, he had no choice because ultimately he would have been removed- at least this time round owing to the shift in power and loyalties within the ruling ANC. The power dynamics and loyalties had shifted tremendously since the party’s elective congress in December 2017. With Zuma’s ex-wife Nkosazana Dlamini Zuma marginally beaten by Cyril Ramaphosa for the ANC presidency, there was hardly any hope for Zuma to survive another bid to remove him through either section 89 or section 102(2) of the Constitution.
The judgment that was…
The Constitutional Court probably accelerated Zuma’s downfall when in March 2016, Chief Justice Mogoeng Mogoeng penned a scathing judgment which copperfastened Zuma’s reputation as the undisputed heavyweight champion of constitutional delinquency. This came after two major opposition parties, the Democratic Alliance (DA) and the Economic Freedom Fighters (EFF) sought a remedy from the highest court in the land to find that the President, by failing to implement the Public Protector’s remedial action regarding the highly publicised Nkandla saga concerning the use of public funds to renovate Zuma’s private residential compound, violated his oath of office. The decision by the Constitutional Court not only pointed out the then president’s failure to uphold the Constitution but also put beyond doubt the hitherto ambiguous question of whether the Public Protector’s remedial action had binding authority.
Despite the fact that Zuma had on occasions prior been found to be at odds with the Constitution, this was the judgment that probably precipitated Zuma’s ultimate resignation. Although he was saved by his ANC loyalists in the eighth motion of no confidence that was subsequently tabled against him, the writing was on the wall for him; for the first time, at least 26 ANC Members of Parliament broke ranks and voted against Zuma.
Maybe Zuma never had nine lives after all
It may be an over-exaggeration to attribute Zuma’s survival against all odds solely to his political wit. Zuma is a member of the ANC, a party which holds 249 of the 400 seats in the National Assembly. It was therefore the ANC that ensured Zuma’s grip on power by continually defeating through its majority, any attempt to remove Zuma. None of the two constitutional provisions which could have been used to remove Zuma were effective without political will on the part of the ANC. As much as many believe that Zuma should have gone a long time back, the peculiar nature of South Africa’s politics presents an interesting phenomenon in that there is such a nomenclature as “two centres of power” which drives the ANC leaders to blur the line between the ruling party and the National Government of the Republic. On various platforms, both president Zuma and several members of his party have made statements which explicitly points towards a policy of party interests above those of the Republic.
Members of Parliament are obliged by section 48 of the Constitution to swear allegiance to the Republic and not to their respective political parties. Maybe the Achilles heel of South Africa’s Constitution is not having a mechanism to deal with such seemingly intricate details of Members of Parliament’s disposition of conflict between party and national interests. The truth is that even the party’s threats to vote against Zuma in an impeachment vote was not done in the interests of South Africa but those of the ANC going into the 2019 elections. What this means is therefore that adherence to constitutional values in government is indefinitely in the hands of the majority party. Constitutional delinquency was never solely a Zuma problem; objectively put, it was an ANC problem. If the governing party does not do an audit of its failures to hold leaders accountable without being influenced by their instinct for self preservation and partisan interests, there is no saying with certainty that the ills of the Zuma era will not resurface in post-Zuma South Africa and all that the country would have achieved is massive losses of the immediate post 1994 democratic gains under the iconic Nelson Mandela. The South African Constitution is entrenched and nothing about it can be changed at a whim, but it is how those that are its custodians relate to it and fully comprehend their obligations towards it, which renders it effective as a governance tool.