ANC Parliamentary statement on ConCourt judgement and 'impeachment' motion

6 April 2016

The African National Congress in Parliament welcomes the National Assembly’s dismissal of the DA’s Motion to remove the President from office. The motion, like many other motions the DA has repeatedly tabled before, was without foundation in terms of the law and the Constitution. Although the DA has, true to its habitual misguided propaganda, dubbed the motion “historical” in the same manner it did with many others before – there was nothing historic or unique about yesterday motion.

The Motion by the DA was neither in line with last week’s judgment of the Constitutional Court nor Section 89 of the Constitution, which stipulates the circumstances under which the President may be removed from Office. It should be borne in mind that, in terms of the EFF case against the President, the EFF specifically asked the Concourt to declare, namely, that the “President failed to fulfil his constitutional obligations in terms of sections 83, 96 and 181(3) of the Constitution and (that) he violated his oath of office”. The Concourt did not make any of those declarations asked. The Concourt also did not declare the President’s violation in terms of Section 89 of the Constitution, which enjoins Parliament to remove the President from office on the grounds of:

 a) a serious violation of the Constitution or the law;

b) serious misconduct; or

c) inability to perform the functions of the office

It is only on these grounds that Parliament may remove the President from Office.

Whilst the Concourt found that the President has acted inconsistently with the Constitution, however the violation is not as provided for in the Constitution’s Section 89(1) (a), which stresses “serious” violation of the Constitution and warrants that the President be removed.  The distinction in terms of the degree of Constitutional violation is important. The Concourt itself found that although the President acted inconsistently with the Constitution, such was not done deliberately or maliciously as he “might have been following wrong legal advice and therefore acting in GOOD FAITH”. Also important to note is the fact that, before the Concourt declared conclusively that the Public Protector’s remedial actions are binding, lower courts had held different opinions on the matter. Further, the fact that the President explicitly committed before the Court to fully implement the remedial actions of the Public Protector demonstrated absence of deliberate or malicious intention to act inconsistently with the Constitution.

President Jacob Zuma is not the first president to be found by the apex court to have acted inconsistently with the Constitution without basing it on Section 89 – which requires the removal of the President. In the 2009 Albutt case the Concourt upheld a decision interdicting President Mbeki from granting pardons to perpetrators of political violence, because the exercise of the power to do so was not rationally related to its purpose.

In 2000, President Nelson Mandela was found by the Constitutional Court to have violated the Constitution (on the basis of acting irrationally) in the Pharmaceutical Companies Vs Mandela case. However, the degree of President Mandela’s constitutional violation, much the same as Presidents Mbeki and Zuma’s, did not warrant removal as specified in Section 89. In all these cases, the Concourt has recognised that the President can violate the Constitution despite acting in good faith and not to the degree stipulated in Section 89 – which amounts to “serious violation” and thus calls for removal.

As the Concourt judges correctly emphasised, the President is a "constitutional being" as he's created by the Constitution. This means any mistake he commits in the course of exercising the functions of his function would be constitutional in nature. However, not all constitutional offences amount to dismissal, unless the Court specifically declares that the conduct directly relates to Section 89. 

 In America, for instance, President Obama has thus far been found approximately12 times to have acted unconstitutionally in some of his decisions by that country’s apex court, the Supreme Court. However, in all those instances he was never impeached as his violations did not fall under Article II which stipulates types of transgressions justifying impeachment. Simply put, Presidents the world over are often ruled to have acted unconstitutionally, but such does not automatically warrant impeachment or any other form of censure.

It is for this reason that the DA’s Motion on Tuesday was inconsistent with both the Concourt judgment and Section 89 of the Constitution. Far from being a ‘historical impeachment motion’, as the DA claimed, it is no different to many other Motions it brought before the House. The constant abuse of this section of the Constitution and the Assembly Rules makes a mockery of one of the most important constitutional powers of the national legislature.

It is to be expected that in its pursuit of a desperate propaganda the DA would run counter to the fundamental historical lesson taught to revolutionaries by Amilcar Cabral to “tell no lies (and) claim no easy victories”.

Our factual clarification of these matters does not in any way suggest justification of the errors committed around the handling of the Nkandla matter on the part of the President or the National Assembly. As we have repeatedly asserted, the judgment of the Concourt is without a doubt an authoritative and sound Constitutional guide regarding how Parliament and the President will conduct their Constitutional functions in future. This augurs well for the strengthening of our state institutions and the future of our hard-fought constitutional democracy.

All of us have learned from these mistakes. The ANC never claims monopoly over wisdom, and through its age-old traditions of humility, self-correction, self-introspection and self-reflection, it will ensure that such mistakes do not recur. The President has humbled himself before the nation and extended a heartfelt apology. This takes the calibre of courage that is rare amongst many leaders of the world. Both the President and Parliament have accepted and expressly committed themselves to implement all the orders of the Constitutional Court without reservations. In our view, our attention must now be fixated on the implementation of the Concourt judgment by both the President and Parliament. With regard to the implementation of the orders pertaining to Parliament, we will ensure our input is made at meetings the Speaker will have with all political parties in Parliament.

Such is the reaction of those who respect and uphold the Constitution and the rule of law.

The ANC remains unwavering in its total commitment to and the defence of the Constitution.

Issued by Moloto Mothapo on behalf of the Office of the ANC Chief Whip, 6 April 2016