The limited options of opposition parties on Nkandla impeachment

The failure of the National Assembly (NA) last week to remove President Jacob Zuma from office despite an alleged serious breach of the Constitution or the law or serious misconduct on his part, left most opposition party leaders scratching their heads. What are the constitutional obligations placed on the NA regarding impeachment? Are other legal avenues available to opposition parties to pursue the removal of the President from office? In what follows I attempt to provide answers to some of the questions raised.

The Constitutional Court held two weeks ago that President Jacob Zuma had failed to uphold, defend and respect the Constitution after receiving an undue benefit from the state that unlawfully enriched him and his family (in other words, he knowingly received a benefit which he was not entitled to).

However, the Constitutional Court did not order the NA to remove the President from office in terms of section 89 of the Constitution (widely known as impeachment). Nor did it make any pronouncement on whether the various violations of the Constitution by the President was serious and hence warranted impeachment in terms of section 89.

Some commentators claim that the judgment is confusing and needs to be clarified. However, it would be futile to approach the Constitutional Court again with a request to “clarify” whether the President’s various violations of the Constitution were serious or not or whether the NA is required to remove the President from office.

This is because (as the Constitutional Court noted in its judgment) it would be inappropriate for the Court to prescribe to the NA how to hold the President accountable. Although the Court had a duty to rule on whether the NA had complied with its binding obligation to hold the President accountable, it could not instruct the NA on how to do so and could not interfere with the way in which the NA exercised its discretion in this regard.

As section 89(1) clearly states that the NA may remove the President on the grounds of a serious violation of the Constitution or the law or serious misconduct, it is for the NA, first, to decide whether the violation or misconduct was serious and then, second, to decide whether the serious violation should be followed by removal from office.

The Constitutional Court specifically invoked the separation of powers doctrine (so beloved by those in power in other contexts, but conveniently ignored by the President’s cheer leaders in this case) to explain why the Court only had a limited role in all of this. It would, said the Court, be inappropriate for it unduly to interfere with the exercise of powers granted to the legislature or the executive.

The Court was at pains to explain that it was not for the judges to pronounce on decisions which the Constitution clearly states must be taken by the NA. Quoting from its First Certification judgment the Constitutional Court stated that:

Courts must be conscious of the vital limits on judicial authority and the Constitution’s design to leave certain matters to other branches of government. They too must observe the constitutional limits of their authority. This means that the judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution.

The Court then continued:

It falls outside the parameters of judicial authority to prescribe to the [NA] how to scrutinise executive action, what mechanisms to establish and which mandate to give them, for the purpose of holding the Executive accountable and fulfilling its oversight role of the Executive or organs of State in general.  The mechanics of how to go about fulfilling these constitutional obligations is a discretionary matter best left to the [NA].

The Constitutional Court judgment thus made it clear that it was not the role of the Court to tell the NA whether the violations of the Constitution by the President were serious or not, nor to tell the NA to impeach the President. (In any event, apart from a handful of Bill of Rights cases, the South African Constitutional Court has never before distinguished between a normal and a serious breach of the provisions of the Constitution as it is not its job to do so. A breach is a breach.)

Opposition parties hoping to convince the Constitutional Court to say more than it has already said about whether the violation of the Constitution warrants impeachment are therefore misguided.

Similarly, those defending the decision by the NA not to impeach President Zuma on the basis that this decision was justified because the Constitutional Court did not explicitly find that the President’s various violations of the Constitution were serious and did not instruct the NA to start impeachment proceedings, have either not read the Constitutional Court judgment or are deliberately misrepresenting the judgement.

What the defenders of the President are in effect arguing is that the Constitutional Court should have interfered with the work done by the NA in a manner that breached the separation of powers in order for the judgment to have warranted impeachment. This justification for the decision by the NA not to impeach is therefore a legal nonsense.

Some opposition parties (notably the EFF) have suggested that the Constitutional Court ruling which found that the NA flouted the rule of law by taking the law into its own hands, delegitimises the NA and requires the NA to be dissolved and for new elections to be held.

While there is no doubt that the finding that the NA had taken the law into its own hands are a serious indictment of the Speaker and the members of the majority party who acquiesced in this violation of the Constitution, it is not clear how the NA could legally be dissolved in order to trigger new elections.

The NA is elected for a term of five years. There are only two situations that would allow an election for the NA to be held before the full five-year term has elapsed. First, in terms of section 50(1) of the Constitution the NA can adopt a resolution to dissolve itself (with a supporting vote of a majority of its members), but only after at least three years have passed since the previous election. This means that the NA cannot pass a resolution to dissolve itself before 7 May 2017.

Section 50(2) also allows an acting President to dissolve the NA if there is a vacancy in the office of the President and the NA fails to elect a new President within 30 days after the vacancy occurred. As President Jacob Zuma is not going to resign and as the majority party is not going to remove him either through a vote of no confidence or through impeachment, this section will not come into effect. This means at present it is not possible to dissolve the NA and to hold fresh elections.

Another political party (COPE) instructed its MPs in the NA not to take part in NA proceedings “until there is clarity from the Constitutional Court on how to proceed”.

The Constitutional Court will not grant further clarity on how to proceed. This is partly because there is no legal confusion on the Constitutional Court judgment and hence no need to clarify aspects of the judgment. Moreover, the Constitutional Court – respecting the separation of powers – will not interfere with the discretion of the NA to decide how it wished to hold the President accountable.

However, in principle, COPE’s withdrawal from the NA is an innovative form of protest as it is based on the assumption that the non-participation of all opposition parties in the proceedings of the NA would delegitimise the NA and would undermine its authority. I assume the thinking is that this would somehow help to delegitimise the vote of the NA not to remove President Zuma.

What is clear is that such a move – even if supported by all opposition MPs – would not bring NA activities to a halt. This is because section 53(1) only requires a majority of its members to be present for the NA to be entitled to vote on the passing of legislation. Moreover, only one third of MPs need to be present in order for the NA to be entitled to vote on other matters.

As slightly more than 62% of the seats in the NA are held by the ANC, the move would have a symbolic, but no practical effect. This would be the case even if the opposition MPs lose their membership of the NA. There would be many open seats in NA plenary meetings and in committees but the work – now done by one party only – could continue.

There is another potential problem with this course of action. Section 47(3)(b) of the Constitution states that a person loses membership of the NA if that person “is absent from the Assembly without permission in circumstances for which the rules and orders of the Assembly prescribe loss of membership”.

NA rule 20 does require any MP “who wishes to absent himself or herself from sittings of’ the NA “or of any other Parliamentary forum of which he or she is a member”, for 15 or more consecutive days on which this House or such forum sits” to obtain permission of the NA to do so.

If the rule is read with section 47(3)(b) it could, at a push, be interpreted to provide for the loss of membership of an MP if he or she is absent for more than 15 days without obtaining permission. But rule 20 does not explicitly state that an MP will lose his or her membership if permission is not granted, so the law on this is rather murky.

Given the drastic consequences that will ensue for an MP if he or she loses membership of the NA for being absent for longer than 15 days, one would think that in the absence of a clear rule “prescribing” loss of membership, a court may find that there is no legally authority to dismiss MPs from the NA for their continued absence.

I am told the Speaker has assumed that because the rule is vague, it does not apply and that no one would lose his or her seat for being absent for longer than 15 days without permission. A note attached to the rule recognises that the NA has failed to provide clear guidance on when section 47(3)(b) will apply, despite the fact that the Constitution has been in effect for 20 years. In recognition of this tardiness a note below the rule states that: “This Subrule will have to be adapted in accordance with section 47(3)(b) of the Constitution.”

If the Speaker remains consistent in her interpretation of the rules, MPs run no risk of losing their seats because of their absence from the NA.

However, if opposition MPs withdraw from Parliament, the possibility always remains that the Speaker and the majority party may attempt to use the rule to get all opposition MPs fired from Parliament. This would be an extremely cynical move – given that the Speaker has not so far enforced the rule – but the question is whether opposition MPs would want to take the risk of losing their seats and whether they would trust the Speaker not to apply the rules differently depending on whether it involves a governing party MP or opposition MPs.

The question I would ask COPE MPs is this: would you in effect trust the Speaker with your job by assuming that she will apply the rules of the NA consistently? I know that I would not.

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