Where do we go from here?

Mervyn E. Bennun says we are living with the consequences of the Zuma govt's defiance of constitutional morality

Typical of other countries and especially of other members of the Commonwealth, South Africa has constitutional conventions and customs. No constitution can provide for every imaginable detail and incident and so the conventions are like lubricating oil, enabling constitutional machinery to run smoothly where the law is silent. They are not set out in legislation, but act – as the great nineteenth century jurist Dicey described them – as ‘constitutional morality’, and those that break them may face grave political consequences and disapproval.

The Declaration issued by the group of stalwarts and veterans of the African National Congress draws attention to the threat to the long-established trust between the ANC and communities which looked to it for leadership. They now see self-enrichment‚ corruption‚ nepotism and the abuse of power, and the moral high ground that the ANC enjoyed is being lost. The Declaration goes on to state that the stalwarts and long serving members of the ANC  ‘......believe that the overwhelming majority of our citizens embrace the values of the Freedom Charter and the Constitution of our country and share this view’.

I am one of the veteran signatories, but I write for myself when I draw attention to the manner in which the current leadership of the ANC has assaulted the South African constitution. I hold no brief for the Democratic Alliance, nor for the Economic Freedom Fighters, nor for any other party in opposition – they must take their own decisions and find their own way to hell or paradise at the hands of voters. However, what happened in Parliament at the State of the Nation Address took place on a stage set by the ANC as the majority party, and as an ANC member I am certainly involved – obliged, even –to comment on what happened.

And what happened displayed what the Veterans’ and Stalwarts’ Declaration draws attention to when we express anxiety about the abuse of power. The African National Congress used its majority in Parliament to defy the constitutional convention that the state in all its forms and manifestations – government, executive and legislature – will comply with judgments and the orders of courts.

And that includes the President, of whom the Constitutional Court said that –

......he is to ensure that the Constitution is known, treated and related to, as the supreme law of the Republic. It thus ill-behoves him to act in any manner inconsistent with what the Constitution requires him to do under all circumstances. The President is expected to endure graciously and admirably and fulfil all obligations imposed on him, however unpleasant.

The remedial action prescribed by the Public Protector with regard to non-security work done with public funds on Nkandla, President Zuma’s private residence, was that he should take prescribed steps to determine the reasonable cost and repay a percentage of it as determined by the National Treasury. Further, he was to ‘reprimand the Ministers involved for the appalling manner in which the Nkandla Project was handled and state funds were abused’. The Constitutional Court found that because he failed to comply with the remedial action taken by the Public Protector in terms of section 182(1)(c) of the Constitution he had violated his obligation under section 181(3) to assist and protect the Public Protector in order to guarantee the institution’s dignity and effectiveness.

The ANC used its parliamentary majority to protect Zuma  from any consequences of the Public Protector’s findings and report – no censure, no criticism. Various commentators in fact described him as untouchable and his own reaction to events in Parliament was a sneering giggle, true to the narcissist’s mantra – ‘Never apologise, never explain; admit no fault, accept no blame’.

The Constitutional  Court said that the President had ‘failed to uphold, defend and respect the Constitution as the supreme law of the land’, firstly by having disregarded the remedial action taken against him by the Public Protector in terms of her constitutional powers; and, secondly, by failing to assist and protect the Public Protector’s independence, impartiality, dignity and effectiveness by complying with her remedial action.

Of the manner in which the National Assembly protected President Zuma,  the Constitutional Court said that it had flouted its constitutional obligations to hold him to account. It appointed a Minister to investigate the matter and then passed a resolution  absolving the President from the findings of the Public Protector:

Neither the President nor the National Assembly was entitled to respond to the binding remedial action taken by the Public Protector as if it is of no force or effect or has been set aside through a proper judicial process. The ineluctable conclusion is therefore, that the National Assembly’s resolution based on the Minister’s findings exonerating the President from liability is inconsistent with the Constitution and unlawful.

The Constitutional Court said that the National Assembly had effectively flouted its obligations, ‘for the Public Protector’s  report was a high priority matter that required the urgent attention of or an intervention by the National Assembly’. It ought to have triggered into operation the National Assembly’s obligation to scrutinise and oversee executive action,  and to hold the President accountable, as a member of the Executive. Instead, the ANC used its majority to force the National Assembly to make its own investigation and thereafter pass a resolution exonerating him.

In subsequent events the Speaker of the National Assembly, Baleka Mbete, played her own part in protecting the President and sustaining the National Assembly’s defiance of the Constitutional Court. The High Court pointed out that the Speaker is bound by the Rules of the National Assembly and its conventions, practices, and precedents. The Speaker ‘is required to show complete impartiality and give a completely objective interpretation of the rules and practice’.

But Mbete has in her own words rejected this emphatically, making it clear that she considers that it is her function as chairwoman of the ANC to exploit her authority as Speaker in the National Assembly to further the interests of the ANC.

In February 2015 she ordered the EFF to be forcibly ejected when they interrupted the State of the Nation address by insisting that Jacob Zuma should ‘pay back the money’ following the Public Protector’s Nkandla report. When addressing the North West Provincial Conference of the ANC a few days later, she said that the EFF planned to behave lawlessly in the provincial legislatures and municipalities. ‘They want to – in their words – collapse Parliament so they can force this country to an early election. They want to take this country so that they must take over the mines and share them with friends they were seen gallivanting with in Europe’. Tellingly, she said. “If we don’t work we will continue to have cockroaches like Malema roaming all over the place.”

She gloated at the manner in which EFF MPs were removed from the National Assembly, saying that ‘The President finally delivered his address after we have had actually a beautiful opportunity to deal with those irritants’. These were not statements made by some uninvolved third person – she herself, as Speaker of the National  Assembly, had ordered the EFF to be ejected.

Though she subsequently apologised for using the word ‘cockroaches’,  this does not render the word unspoken. Her apology merely acknowledges that her language was dangerous and offensive. The world, however, remains free to draw its own conclusions from the evidence and to decide whether the Speaker of South Africa’s National Assembly can be described as being ‘impartial’. So what does her apology change?

Moreover, from what she said one might conclude that it is wrong for the EFF – or any other party, for that matter – to ‘collapse Parliament and force the country to an early election’. So in the opinion of the Chairperson of the ANC – dear me, I do apologise! I mean the Speaker of the National Assembly – it is improper in South Africa for Opposition parties to do what Opposition parties try to do in democracies.

In summary, when President Zuma (condemned by the Constitutional Court as having betrayed his oath of office) was to address Parliament (condemned by the Constitutional Court for having failed to hold the President to account for his misconduct) the Speaker (discarding all pretence at being impartial) protected the President from the consequences of his illegitimate conduct.

Every ANC Member of Parliament knows all this, but during the State if the Nation proceedings they hardly bothered to defend Jacob Zuma’s character. He befouled his high office, betrayed the oath he took when he accepted it, and thereby lost all legitimacy; but the response of ANC Members’ to the Opposition’s claim that he was no longer fit to be called ‘Honourable’ was obscenities, insults, and abuse.

Replying to the debate which followed, Zuma remarked that those who described him as a ‘constitutional delinquent’, a thief and a tsotsi, and has having dishonoured his oath of office, had treated Parliament ‘like something worse than a beer hall’. Are we to conclude that if the Opposition had made their protest in some other manner, then he would have supported their criticism of him?

We live in a constitutional democracy and have free and fair elections, which means that a party can win power in an election and can also lose it. Just how would the ANC, if it were in opposition, react if confronted by a similar situation?

Sec. 165 of the Constitution states that ‘(o)rgans of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts’ and that ‘(a)n order or decision issued by a court binds all persons to whom and organs of state to which it applies’. The Constitutional Court   has no means to enforce any consequences from a finding that the President has violated his oath of office, but, as Professor Hugh Corder points out, ‘there is a special burden on the State (in the form primarily of the executive, but also the legislature) to set an example and to display appropriate respect for the judicial branch of government – deference is a mutual relationship,  indeed perhaps an integral part of the rule of law’.

Professor Corder further draws attention to the ‘outright  resistance to, or contempt for, judgments of the courts by public officials, or  tardiness or even failure by the State to implement court orders’. One way in which conventions become established is though usage – ‘This is what we’ve done previously in this situation, so we’ll do the same now’.

Jacob Zuma has stated that his loyalty to the ANC comes before his loyalty to South Africa, and he has said more than once that people needed to accept that the ANC would rule until Jesus Christ returns.  In the course of the debate in the National Assembly on the release of al-Bashir despite a High Court order to the contrary, it was revealed that the Cabinet had decided that ‘peace and stability’ are more important than compliance with the law. Is a constitutional convention now developing that the ruling party may regard a defeat at the ballot box as constituting a threat to South Africa’s peace and stability?

The Veterans’ and Stalwarts’ Declaration states that ‘we remain devoted to the principles and values that have been the hallmark of the ANC for over 100 years, values that are encapsulated in the Constitution of our country and the Freedom Charter’. What is happening now is the betrayal of the victory we won.

The ANC has inflicted  a ghastly wound on itself and on Parliament, for what happened in the National Assembly was the direct and immediate consequence of the defiance of the constitutional morality as described above by Professor Dicey. Waiting for the scheduled end of Zuma’s presidency will serve to crystallise a developing convention. He, and those who protect him, must go.

And they must go now. Delay is dangerous.