The interpretation of the Concourt ruling regarding President Jacob Zuma’s private reisdence in Nkandla should be devoid of emotions, writes Dr Bheki R Mngome-Zulu.
The ruling of the Constitutional Court on March 31 on the long drawn-out Nkandla issue will undoubtedly go down in history as an epitome of the consolidation of South Africa’s nascent democracy.
The separation of powers was confirmed as Chief Justice Mogoeng Mogoeng read out the unanimous decision of the 11-member bench which was characterised by impartiality, vigour and firmness.
While it is true that the Chief Justice announced a total of 11 Orders, the two key findings of the court were the following: (i) President Zuma acted improperly when he did not implement the findings and the accompanying remedial action of the public protector; (ii) the National Assembly failed to execute its duty as the watchdog when it exonerated President Zuma. In both instances, the national constitution was flouted.
Such a ruling vindicated the public protector and moved opposition political parties to seventh heaven. Moreover, the judgement indubitably put a smile on the faces of President Zuma’s political adversaries.
One positive thing we can gauge from the ruling is that it provided clarity on how to deal with the findings of the office of the public protector henceforth.
In particular, Justice Mogoeng Mogoeng stated that any remedial action pronounced by the public protector is legally binding. Moreover, only a court of law could subject the public protector’s recommendation to scrutiny, not a parallel investigative unit(s) as was the case with the Nkandla issue.
In essence, what became problematic was not the fact that the findings were questioned.
On the contrary - it is the avenues followed that were found to have been inconsistent with the constitution.
Going forward, everyone will know what to do in the event that there is dissatisfaction or uncertainty about the findings of the public protector on an issue which landed on her table or that of any of her successors, for that matter.
But what can we glean from the whole Nkandla saga? First, it is interesting to note that it was the EFF and not the DA as the official opposition which took the matter to court.
In a way, this should not come as a surprise. Even before joining Parliament the EFF vowed to wage war against President Zuma as an individual and the ANC as an organisation.
In this context, taking the Nkandla matter to court was more of a personal vendetta than honest execution of responsibility as the second largest opposition political party in Parliament.
Be that as it may, the ruling somewhat boosted the political stature of the EFF, although the sustainability of this political gain cannot be guaranteed.
I say this because Julius Malema’s diction leaves a lot to be desired and he is never scared to throw bombs at his political adversaries, showing no respect to them whatsoever.
The immediate reaction of the EFF, DA, COPE and other opposition political parties, as well as certain individuals within the ANC, to the judgement leaves much to be desired.
In fact, the immediate call for the president to vacate office was a clear demonstration of political immaturity. This submission will become clear below as we dissect some of the Chief Justice’s key pronouncements.
First, both the president and the National Assembly were found to have acted with impropriety.
If that is the case, the question is why these political parties and individuals such as Matthew Phosa call for the president to resign but do not at the same time call on the National Assembly to dissolve itself?
After all, they were both found to have acted improperly.
Secondly, according to Section 89(1) of the constitution, while it is true that the president can be impeached if it is found that he violated the constitution, such impeachment has to happen in the National Assembly through a two-thirds majority.
Interestingly, the very same National Assembly is a culprit. Those who are blinded by emotions seem to ignore this fact, both wittingly and unwittingly.
What would be the implication of removing President Zuma from office? One possible answer is that this would confirm the maturity of our democracy by demonstrating that we removed the president following the constitutional imperative as outlined in Section 89(1).
On the other hand, it would mean victory to the opposition parties, who have always wanted to remove the president but could not do so since they had nothing of substance to use as the basis.
Importantly, given that former President Mbeki was recalled before his term of office ended, such a move would paint the country in a bad light on the global scene.
So, what should be the way out?
The answer is simple. President Zuma must act as instructed by the Constitutional Court. He has to wait for the National Treasury to decide how much he needs to pay and then pay it.
Secondly, President Zuma must reprimand those ministers who are said to have acted with impropriety.
As for the functioning of Parliament and President Zuma’s fate in it, the writing is on the wall that we shall see a worse situation than we have seen in the past.
The EFF has already stated that it will physically remove the president from the podium if he tries to address Parliament.
Many opposition parties have also stated that they can no longer listen to President Zuma because, in their view, he is no longer fit for office. However, such pronouncements are largely driven by emotions as opposed to logical reasoning.
If anything, the ruling of the Constitutional Court should be used to strengthen our democracy.
In its tone, the ruling was “corrective” as opposed to being “punitive”. It would be both foolhardy and disingenuous to let emotions prevail over proper reasoning. The judgement has brought the Nkandla issue to rest.
It is now an opportune time for the nation to move forward. As for the opposition political parties, they should now put something concrete on the table to take the country forward and put the Nkandla issue to rest, since it has run its course and has thus become obsolete.
*Dr Bheki R Mngome-Zulu is the CEO of the Mzala Nxumalo Centre for the Study of South African Society.
** The views expressed here are not necessarily those of Independent Media.
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