Cape Town - Parliament could find itself on the wrong end of another Constitutional Court ruling if it takes no action to hold President Jacob Zuma to account on Nkandla, says UCT professor in Constitutional Law Pierre de Vos.
ANC chief whip Jackson Mthembu argued on Wednesday that all that remained for Parliament to do in the light of last week’s “mammoth” judgment was to oversee implementation of the remedial actions of Public Protector Thuli Madonsela, including that Zuma pay the amount to be determined by the Treasury within the specified period and reprimand the responsible ministers.
Jackson Mthembu: We are not sycophants
He said if the Constitutional Court had believed Zuma’s violation to be serious enough to warrant possible impeachment it would have specifically mentioned Section 89 of the Constitution - which sets out grounds for a president to be removed - or it would have made an order for an inquiry into the president’s fitness for office.
But De Vos said while the legislature had been within its rights not to remove Zuma on Tuesday via the motion to this effect tabled by the DA, it was clearly expected to do something.
This comes after the Constitutional Court ruled Zuma had violated the Constitution in failing to implement the public protector’s remedial actions on Nkandla and that Parliament had breached its constitutional obligations in failing to hold him to account for this.
Writing in his blog, Constitutionally Speaking, De Vos said the ANC and Zuma hoped to distract attention from the “catastrophic fire” burning around them by trying to turn “a simple choice between what is right and what is wrong into a procedural question or by making technical legal arguments of a highly semantic nature”.
Even before Zuma failed to pay back the money for non-security upgrades as required by Madonsela, he had allowed himself to be “enriched” by failing to put a stop to the upgrades despite being aware of them, Madonsela’s report said.
“As the National Assembly must hold the president accountable for his unlawful actions (enriching himself, then failing to uphold the Constitution for self gain), it needs to use some of the other mechanisms at its disposal to do so,” De Vos said.
It had the option of summoning Zuma to explain why he had allowed the construction of the swimming pool and other non-security features to continue and why he had failed to comply with Madonsela’s report.
It could also censure the president and his ministers for their unlawful and unconstitutional action. “What is clear is that there is a constitutional duty on the National Assembly to act, to do something,” De Vos said.
Cope leader Mosiuoa Lekota said following the debate on the impeachment motion, opposition parties would consider approaching the Constitutional Court again for clarity on what Parliament was expected to do in light of the judgment.
Briefing journalists on the ANC caucus response to the Constitutional Court judgment and failed motion to remove Zuma, Mthembu said, however, that the party’s position was that it had accepted Zuma’s apology and commitment to comply with the court order to pay.
The court had not found Zuma to have committed a “serious” violation of the Constitution - the words used in Section 89 - and had accepted he may have ignored Madonsela’s remedial actions in good faith, on the basis of incorrect legal advice.
“Indeed, we were convinced and are still convinced that we voted correctly, that we couldn’t have voted any otherwise,” Mthembu said. “We still have to find a party that will be galvanised by opposition parties to vote its leader out of presidential office.”
However, he apologised on behalf of the caucus for having given the impression that the party had been correct in endorsing Police Minister Nathi Nhleko’s Nkandla report, which absolved Zuma of the responsibility to pay.
He said when Nhleko presented his “bioscope” in Parliament, it should probably have rejected it and informed the executive.
“What blinded us so much, when even other colleagues were saying to us, we think you are wrong. We must say, they said to us, you are wrong and we think the Constitutional Court, or any court, will not agree with you.
“They said that in our face -what blinded us?” Mthembu asked, vowing that the party would take a hard look at its capacity to hold the executive to account “in the real sense of the word”.
According to De Vos, this means it must take some action against Zuma, even if the court would be loathe to prescribe what this should be.
“A failure to act will potentially again leave it in violation of the Constitution,” he said.
Political Bureau