George Devenish
THE Constitutional Court’s historic judgment relating to President Zuma and the Nkandla debacle is a watershed in our constitutional development and jurisprudence.
It enunciated in unequivocal and clear terms the nature of our constitutional dispensation based on liberal democracy, encapsulating a supreme constitution and a progressive Bill of Rights.
In a unanimous judgment, penned by Chief Justice Mogoeng Mogoeng, the Constitutional Court explained how the three branches of government must operate according to the philosophy of constitutionalism in which power is exercised through a system of defined procedures and limits, and that all rights are sustained and exercised in accordance with the letter and spirit of the constitution.
In every sense, the judgment delineated a theory of such government based on a profound sense of morality premised on government by consent and accountability rather than coercion.
However, the practice of constitutional democracy is always more problematic than the theory. In all probability, the judgment – and its consequences – is going to create a chronic constitutional crisis for South Africa.
Although Zuma has made an abject apology, he has also made it categorically clear that he has no intention of resigning. He has explained that he had no deliberate intention to flout the law or the constitution.
Instead, he has expediently laid the blame or culpability for his erroneous conduct on those who were tasked with furnishing him with legal and political advice.
What is, however, clear from the monumental judgment of the unanimous bench of the Constitutional Court is that Zuma, as the chief executive of the state, is politically and legally accountable for the conduct he adopted in relation to the public protector’s report relating to the non-security upgrades to his private residence at Nkandla. In colloquial language, the buck stops with him.
The constitution and his solemn oath of office requires that he “must uphold, defend and respect the constitution as the supreme law of the Republic”. This provision is clearly mandatory or obligatory.
It is submitted that failure to do so, whether deliberately or negligently, or even inadvertently, must result in a culpable breach of his oath of office to “obey, observe and uphold and maintain the constitution”.
This, he patently failed to do, thereby rendering him liable for impeachment, for which, according to section 89 of the constitution, is required a “serious violation of the constitution or law; or serious misconduct or inability to perform the functions of office”.
It is submitted that a perceptive reading and interpretation of the relevant provisions of the constitution and of his oath of office make it abundantly clear that he cannot be exculpated on the grounds of ignorance of the law.
It is submitted that his continuance in office, with the consent and support of both the ANC and Parliament, would constitute an egregious travesty of the supreme law of the land that is both morally and constitutionally indefensible.
Such a state of affairs will constitute a constitutional and political crisis which, if it should continue, would become chronic – with dire political and economic consequences.
It is not a matter that should be left to the governing ANC and Parliament, but is of crucial importance for the people of South Africa and civil society, who must speak up unequivocally and in no uncertain terms to ensure that our fledgling democracy involving an exemplary constitution with its progressive Bill of Rights prevails.
South Africans, having created an authentic democratic system of government premised on the values of equality and liberty for all, at a sublimely great cost, need to ensure that it is defended against the predations of those in the new body politic, who disregard its provisions with impunity.
The cost of liberty is indeed eternal vigilance, and those who have a responsibility in our society to uphold the constitution and its values must be on their guard in this regard. The universal rights and values in the constitution are not self-executing, but have to be invoked and upheld by all those who are affected by their violation or abridgment.
l Devenish is an emeritus professor at UKZN and one of the scholars who assisted in drafting the interim constitution in 1993.