Zuma's time has come – senior counsel
Publish date: 04 April 2016
Issue Number: 3962
Diary: Legalbrief Today
A qualified apology from President Jacob Zuma and an unequivocal refusal to apologise from Speaker Baleka Mbete, who will chair tomorrow’s Zuma impeachment debate in the National Assembly, were how the duo at the centre of the Nkandla saga dealt with last week’s landmark judgment that found both Zuma and the National Assembly had breached the Constitution in dealing with Public Protector Thuli Madonsela’s report on the profligate public spending to the President’s private homestead, notes Legalbrief. Neither has resigned and both, it seems, intend to soldier on in the face of growing political opposition, and, in Zuma’s case, strong legal opinion that his time has come.
Four senior counsel involved in the landmark case agree that Zuma should resign or be recalled. ‘This is the end of President Jacob Zuma. The judgment confirmed that the President is corrupt,’ one senior counsel is quoted as saying in a City Press report. It says all the advocates spoke on condition of anonymity, saying they couldn’t speak on the record because they were interested parties and were directly involved in the case. ‘Morally and ethically, it will be impossible for the ANC to continue with him, and he should be recalled sooner rather than later,’ he said. Another senior counsel said: ‘Ordinarily, somebody in his position should resign or be pushed. On the basis of consistency with the Nicholson judgment, this one is 100 times better in quality. It will be extremely difficult for the ANC to keep Zuma in office as head of state because of the judgment. They can keep him as head of the ANC, but not of SA. The nature of the violation is so serious that the ANC cannot continue to claim to be friendly towards the Constitution and still keep Zuma in office. It is not acceptable, both morally and ethically.’ The report notes that during Zuma’s corruption trial in 2008, retired Judge Chris Nicholson found that former President Thabo Mbeki was part of a political conspiracy against Zuma. The ANC used Nicholson’s judgment to get rid of Mbeki in 2008. ‘The most serious thing for me in this week’s judgment is that the court found it necessary to lecture Zuma about the duties of the President,’ said the SC, adding that the subtext was that Zuma was not aware of his duties, or was in dereliction of them. ‘From a legal point of view, they have no option (but to recall Zuma).’
Mbete made it clear at a press briefing yesterday that she would not resign. And she would also not consider recusing herself from tomorrow’s debate on the DA motion calling for Zuma to be impeached, notes a BDlive report. Thandi Modise also said she would not resign as the National Council of Provinces had nothing to do with the matter. Mbete pointed out that the Constitutional Court did not find that the institution had violated the Constitution, but its actions were inconsistent with the Constitution, says a Cape Times report. Mbete vehemently denied that Parliament violated the Constitution when it replaced the findings of the Public Protector with its own resolution that cleared Zuma. She said the court found that Parliament had acted in an inconsistent manner on certain issues. Instead of taking over the work of Madonsela and exonerating Zuma, Parliament should have taken the findings of the Public Protector to court for a review. ‘To say Parliament violated the Constitution takes the matter beyond what has been raised so far,’ she said. She was backed by Modise. ‘Has Parliament flouted the Constitution? The court found that there was nothing with the process. What the court found was that instead of then deciding, our findings replaced the findings of the Public Protector. We should have taken those to court, not that we had no right as Parliament to deal with the matter,’ she is quoted as saying.
Mbete lauded the judgment, saying it would be used to guide relevant processes in future. ‘The judgment makes sound, balanced and critical findings,’ Mbete is quoted as saying in a News24 report. ‘These are major and most welcomed lessons that will serve to guide processes and approach in handling reports of Chapter Nine institutions in the future.’ She added: ‘One thing is certain. Our democracy is alive and well. With the benefit of the judgment, certain matters could have been handled differently.’ She reiterated the importance of the court as a guardian of the Constitution and welcomed that it had affirmed the National Assembly's powers and oversight responsibilities. The judgment ‘boded well’ and was important for democracy.
COPE leader Mosiuoa Lekota slammed Mbete for her explanation that the ruling showed Parliament ‘did nothing wrong except one little thing’ as totally disingenuous and mischievous, notes a Daily Dispatch report. ‘The fact that the National Assembly acted in a manner inconsistent with the Constitution is a very serious indictment of her and of the ANC caucus. She should have been distraught about that pronouncement against Parliament by the Chief Justice. Unfortunately‚ she has sought to minimise the chastisement. She and the ANC caucus broke the law. That is official. Consequences should now follow.’
Zuma told the nation on Friday he did not deliberately violate the Constitution. ‘I also respect the finding that failure to comply with the remedial action taken against me by the Public Protector is inconsistent with the Constitution of the Republic,’ he said in his address to the nation live on SABC, notes a News24 report. ‘I wish to emphasise that I never knowingly or deliberately set out to violate the Constitution which is the supreme law of the Republic.’ Earlier, according to another News24 report, Zuma said he meant no disrespect to Madonsela when he failed to immediately comply with her remedial action. ‘It was never my intention not to comply with the Public Protector's remedial action or disrespect her office,’ Zuma said.
Tomorrow's impeachment debate will be the first time a motion to remove a President is debated in democratic SA. In the past, notes a City Press report, MPs have debated motions of no confidence in the President, which are political statements. But the motion to remove a President is provided for in the Constitution and is considered on the grounds of a serious violation of the Constitution or the law, serious misconduct or the inability to perform the functions of office. Two-thirds (267) of the National Assembly’s 400 MPs will have to vote for the impeachment for it to carry. In his letter to Mbete requesting the debate, DA leader Mmusi Maimane said he was writing in light of the Constitutional Court ruling ... which confirmed the legal principle that, absent a judicial review, the Public Protector’s findings and remedial actions were binding and had to be implemented. Maimane wrote: ‘The Constitutional Court found that President Zuma’s failure to comply with the remedial action taken by the Public Protector as set out in her report dated 19 March 2014, Secure in Comfort, is unlawful and inconsistent with the Constitution. The actions of President Jacob Zuma in requesting the Police Minister, Nathi Nhleko, to determine the amount he should repay for the costs of upgrading his private home in Nkandla were inconsistent with the remedial action directed by the Public Protector and therefore inconsistent with the Constitution. President Zuma seriously violated the Constitution when he sought to undermine the Public Protector’s findings by instituting parallel investigative processes, and Parliament has an obligation to condemn him and his actions,’ added Maimane. He also listed other cases in which the courts had ruled against Zuma or his executive.
Mbete said she would not allow a secret ballot in the impeachment vote. ‘We’ll use the rules we’ve always used,’ she said, according to a report in The Herald. It says opposition parties have begun seeking legal opinion on approaching the Constitutional Court should their call for a secret ballot be denied. UDM leader Bantu Holomisa said opposition parties would, through the DA, push for Zuma’s impeachment and request a secret ballot. ‘The Speaker must remember a secret ballot was called for in 2009, which set a precedent,’ he said. ‘If they do not allow this, we will consider approaching the Constitutional Court to ask for a ruling. Constitutional law expert Professor Marinus Wiechers said the chances of political parties succeeding in the Constitutional Court should they approach it over a refusal of a secret ballot were slim. ‘That’s because of the separation of powers,’ he said.
The end of Zuma might be nigh, but it will not be because of impeachment, a recall or a vote of no confidence. It will be because of his age, Zuma says, according to a report in The Herald. Addressing 15 000 supporters in KZN yesterday, Zuma said: ‘I am not going to be in power for long because the years have gone by. Don’t be fooled by my good looks,’ he joked. His message to his detractors, including those within the ANC, and supporters, was simple: ‘Let me lead. As your shepherd, let me lead you. Among many things that I have been tasked with is to be the President of the country. It does not matter whether you are a Zuma (supporter) or not, at this moment I have been given a task to lead you. I want there to be respect for all,’ he said.
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