Nkandla judgment – A short word on impeachment

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07 April 2016 – In the wake of a failed bid to impeach the President and calls from former ANC stalwarts for Zuma to resign, there is a national feeling that the Constitutional Court judgment on Nkandla has failed to do what it was supposed to: have Zuma impeached. But this does not properly explain the complex relationship between law (the Nkandla judgment) and politics (the power of Parliament to have Zuma removed). The judgment was not about impeachment.

Section 89 of the Constitution says that the President may be impeached for ‘a serious violation of the Constitution’ if there is support from two-thirds of MPs. Impeachment comes down to votes in the National Assembly. And, the opposition – garnering only 143 of the 243 votes – simply did not have the numbers.

The ANC is probably correct that there is a distinction between infringing and seriously infringing the Constitution. Section 89 includes that word for a reason. But Jackson Mthembu’s statement that all the President had done was act inconsistently with the Constitution, and that there was no dishonesty or bad faith on his part – even suggesting that the Court said Zuma had acted honestly – garbles the truth, as we suggested on Monday. There are strong indications that Zuma did act dishonestly, or at least with reckless disregard for other institutions and the law. But, in any event, his breach of the Constitution was long-standing, high-profile, widely criticised at the time, and came on the back of a series of adverse findings in the Public Protector’s report. This cannot be anything less than a serious violation. And the fact that previous presidents acted unlawfully is, contrary to Mthembu’s claims, irrelevant. Neither Mandela nor Mbeki ever breached the foundational presidential duty to uphold our Constitution.

Yes, the Court did not explicitly state that Zuma had violated his oath of office. But this is the substance of its conclusion that he had acted inconsistently with his duty to ‘uphold, defend, and respect the Constitution’. As the Chief Justice was at pains to explain, the President’s office is ‘the highest calling to the highest office in the land’, he is the ‘first citizen of this country’ and it is ‘only upon him has the constitutional obligation to uphold, defend and respect the Constitution as the supreme law of the Republic been expressly imposed’. President Zuma took an oath to ‘uphold’ the Constitution. And the Court found that he failed to do so.

The failed impeachment bid is not the end of the matter. It would still be open to opposition members to table a motion of no confidence in the President – a different procedure, provided for in section 102 of the Constitution, which does not require that there was any ‘serious violation’ by the President. And a simple majority in Parliament – no need for two-thirds – could pass this motion. The opposition would prefer impeachment because it would strip the President of all the benefits of his office, but that only makes it less likely to fly with ANC MPs. So the motion of no confidence is more viable than impeachment. Yet absent the force of numbers, even this softer procedure is unlikely to succeed.

Neither impeachment nor a motion of no confidence can ever be an automatic consequence of a court judgment. The fact that the National Assembly did not vote in favour of removing Zuma does not mean that what President Zuma did was not seriously wrong. It simply means that there was a lack of political will to have him removed.

Raisa Cachalia

About Raisa Cachalia

Raisa is a researcher at SAIFAC (South African Institute for Advanced Constitutional, Public, Human Rights and International Law), a centre of the University of Johannesburg. She has BA, LLB, and LLM degrees (cum laude) from the University of the Witwatersrand. Raisa previously worked as a candidate attorney at Bowman Gilfillan Inc. and was admitted as an Attorney of the High Court in 2013. She clerked at the Constitutional Court of South Africa in 2013-14 and has been on Caveat Legal's panel of legal consultants since 2014.