As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Earlier this week the Constitutional Court was confronted with perplexing and difficult to answer questions. What exactly is the content of the judicially enforceable constitutional obligations of the National Assembly (NA) to hold members of the Executive (including President Jacob Zuma) accountable? Is it easier for a court to enforce these obligation when there is ample evidence that the President’s moral rectitude is, at best, in doubt?
It was after 5 on Tuesday afternoon in a packed Constitutional Court that the legal representative for the Speaker of the NA made an admission that would have driven the paid Twitter crowd to more than one drink at the Saxonwold Shebeen. Arguing that the Speaker was not in breach of any constitutional duty to take steps to hold President Zuma accountable for the Nkandla scandal, Advocate Ngoako Maenetje conceded that: “As a lawyer I accept that the President’s failure on Nkandla was a serious violation of the Constitution.”
This concession was properly made in the light of the findings of the Constitutional Court against President Zuma in its Nkandla judgment (Economic Freedom Fighters v Speaker of the National Assembly and Others) where it held:
The President thus failed to uphold, defend and respect the Constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the Public Protector in terms of her constitutional powers. The second respect in which he failed relates to his shared section 181(3) obligations. He was duty-bound to, but did not, assist and protect the Public Protector so as to ensure her independence, impartiality, dignity and effectiveness by complying with her remedial action.
Of course, this was not the first time a court had something to say about the questionable behaviour of President Zuma. Although Zuma was not himself an accused before the court in the Schabir Shaik trial (because of an inexplicable decision by the then National Director of Public Prosecutions not to charge him despite a prima facie case against him), his actions loomed large in the trial of Mr Shaik.
In dealing with Mr Shaik’s appeal of his conviction for corruption the Supreme Court of Appeal (SCA) held in S v Shaik and Others that it was “not in dispute that Shaik gave benefits which were not legally due to [Mr] Zuma at the time that [Mr] Zuma held public office”. The SCA also confirmed that these benefits (over R1 million) were given corruptly because it “was given with the intention to influence Zuma to commit or omit to do any act in relation to a power conferred on him or a duty with which he had been charged”.
Shaik gave the money, the court held, with the intention to get Mr Zuma “to act in conflict with the duties imposed upon [Mr] Zuma by the terms of sections 96(2) and 136(2) of the Constitution”.
The judgment rejected Mr Shaik’s claim that he gave all this money to Mr Zuma merely to support a political ally. Instead the court discussed various instances in which Mr Zuma used his position to do favours for Shaik to come to the conclusion that Shaik bankrolled Mr Zuma “to keep Zuma in politics in order to ensure that [Shaik’s] business had highly-placed political patronage”. Discussing one of Shaik’s schemes to use the political patronage offered by Mr Zuma, the SCA explained:
It is clear that what Shaik wanted Zuma to do was to act in conflict with his constitutional duty. He was asked, against the background of the past and ongoing payments made to him or on his behalf, to go and speak to the French to assure them that Nkobi was acceptable to the ANC government and thereby to regain a vital asset for Nkobi. This was something no commercial competitor would have been able to procure. In the language of the constitution Shaik wanted Zuma to undertake paid work; he wanted Zuma to act in conflict between his official responsibilities and his private interests; and he wanted Zuma to use the opportunities of his position as MEC to enrich himself, or improperly to benefit Shaik.
It is important to note that the evidence before the court showed (and the SCA accepted) that Mr Zuma indeed went to speak to the French as requested by Shaik.
The SCA also had to deal with the R1 million bribe for Mr Zuma, solicited by Shaik from a French arms company (these were the days before the Guptas arrived on the scene, so the amounts involved now appear laughably small).
The SCA held that the State had proven that the French arms company had corruptly offered:
to give a benefit; which was not legally due; to a person, being Zuma; who had been charged with duties, being the duties set out in s 96(2) of the Constitution; by virtue of the holding of the office of Deputy President of the RSA; with the intention to influence him; to commit or to do an act in relation to such duty.
The SCA did not deal with the question of whether Mr Zuma had accepted the offer and had thus agreed to the corrupt scheme. However, the transcript of testimony provided in a confidential arbitration hearing between Ajay Sookal and the French arms company revealed that Mr Zuma in 2000 accepted the bribe, apparently by signalling his acceptance by remarking during a meeting with Alain Thetard, the then-head of French arms company’s South African subsidiary Thint, that: “I see the Eiffel Tower lights are shining today”.
Although the President must answer questions in the NA at least once every 3 months in terms of NA Rule 140, and has responded (but has seldom answered) many of the questions that arise from the above judicial findings, the EFF, Cope and the UDM approached the Constitutional Court with the argument that the Speaker (as the representative of Parliament) had not done enough to hold the President accountable.
This case is a difficult one for the Constitutional Court partly because it is not clear exactly what the nature of the obligations is that the Constitution imposes on the NA (and the Speaker) to hold the President accountable. The sub-question, flowing from the above, is whether it is appropriate for the Constitutional Court in a case like this (where there are different options open to the NA to hold the President accountable) to intervene and to order the NA to embark on a specific course of action. Would a court’s intervention not disrespect the separation of powers between the judiciary and the legislature?
It is clear from the relevant provisions of the Constitution that the NA has a constitutional duty to hold members of the executive (including the President) accountable. In terms of section 42(3) of the Constitution the NA “is elected to represent the people and to ensure government by the people under the Constitution”, inter alia by “scrutinizing and overseeing executive action”.
Section 55(2) further states that the NA must provide for mechanisms “to ensure that all executive organs of state in the national sphere of government are accountable to it”. Moreover section 92(2) holds that members of the Cabinet (which include the President) “are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions”.
Section 56 grants wide powers to the NA to fulfil this task. In terms of this section the NA or any of its committees may summon any person (including the President) to appear before it to give evidence on oath or affirmation, or to produce documents; require any person or institution to report to it; and compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons”.
Nothing prevents the NA from establishing an ad hoc committee in terms of its rules (NA Rule 253) to enquire about the conduct of the President with a view to have him impeached for a serious violation of the Constitution or the law or serious misconduct in terms of section 89 of the Constitution. Neither does anything prevent the NA from forcing the President to testify before such a committee and to produce all relevant documents (including proof of the alleged bond the President claimed was financing the Nkandla upgrades).
But the NA has not done any of these things.
The question before the Constitutional Court, in essence, was whether the court could (or should) intervene with the internal workings of the NA to order it to do what the NA was already entitled to do (but had not done) to hold the President accountable for his misdeeds.
Put differently, the Court was asked to decide whether the NA breached its constitutional obligations to hold the President accountable when it did no more than facilitate the quarterly question and (non)-answer sessions with the President. If it holds that the NA did breach the Constitution, it would be constitutionally required to impose remedial action to remedy the breach.
I would think that the Constitutional Court, in deference to the separation of powers doctrine, would not normally intervene to instruct the NA how to hold a member of the executive accountable because it would not normally be able to say definitively that the NA had not done what it was constitutionally required to do.
However, the EFF, Cope and UDM have (what they believe to be) an ace up their sleeve. They seem to argue that this is a special case: because of the adverse findings made by the Public Protector and the Constitutional Court against President Jacob Zuma, they claim, the Speaker had had a clear constitutional obligation to take steps to ensure that the NA holds the President accountable.
The parties therefore asked the Constitutional Court to direct the Speaker “to put the requisite processes and mechanisms in place to hold the President accountable for his conduct”. This would include setting up some fact finding process or mechanism (the DA, who was admitted as an amicus curiae, called this a “trial”) to determine the factual question of whether the President was in fact guilty of “a serious violation of the Constitution or the law” or of “serious misconduct”.
In terms of section 89 of the Constitution the President can be only be impeached if he is indeed guilty of “a serious violation of the Constitution or the law” or of “serious misconduct” (or if he is incapacitated). Even if an enquiry established the fact that the President was guilty as required, that would not be the end of the matter. The NA would still have to vote and support impeachment with a two-thirds majority before the President could be removed. Not only the facts established during the enquiry, but also political considerations, could potentially influence how MPs voted.
But, so I understand the argument, if a factual finding was made that the President was guilty and MPs did not impeach him, then voters would know that MPs from one or more parties decided to protect a President despite the proven fact that he was guilty of “a serious violation of the Constitution or the law” or of “serious misconduct”. Those MPs and the parties they belonged to would then have to face the possible electoral consequences of their decision.
Will the Constitutional Court order the NA to set up such a fact finding mechanism (as the EFF and others are asking for) or will it leave it up to the NA and the Speaker to decide on this? The judges peppered representatives of both the applicants (EFF and others) and the respondents (Speaker) with many critical questions, so it would be foolhardy to make a prediction on this matter.
What I will predict is that the judgment will contribute to the further development of our understanding of the obligations of the NA to hold the President accountable and on the appropriate role for each of the three branches of government within the model of the separation of powers.BACK TO TOP