Judicial activism on Zuma has limits

By Rafiq Raji, PhD
Twitter: @DrRafiqRaji

In ruling on 29 December that the South African parliament failed to hold Jacob Zuma, the president of the Republic, accountable as they should, the Consititutional Court ruled in the majority. But surprise, surprise, there was a minority view. And from who? Chief Justice Mogoeng Mogoeng. He highlighted the need for seperation of powers and the risk of judicial overreach if events continue as they are. Quoting the judgement: “the Chief Justice characterises the majority judgement as a textbook case of judicial overreach – a constitutionally impermissible intrusion by the judiciary into the exclusive domain of Parliament.” Almost everything now is brought before the courts. Mr Zuma disagrees on something? The aggrieved goes to court. Ultranationalist Economic Freedom Fighters (EFF) opposition party does not get its way in parliament? It goes to court. Bit by bit, if care is not taken, the authority of the court may become increasingly eroded. Furthermore, its risks performing the functions of the other arms of government more and more. That would be an anomaly and an injury to the South African polity. Because thereafter, who puts the judiciary in check? Unsurprisingly, when one news agency made it seem like the minority view was the majority one, EFF leader Julius Malema immediately put it to check; evidence of the passions involved. One Twitter follower reacted quite impassionately as well. He made the point that the Justice Mogoeng’s judgement was inconsequential and that he did not think it was an overreach on the part of the Constitutional Court to remind parliament that it failed in its oversight functions or that it had been operating without specific provisions for the removal of a president; a democratic foundation, he adds. In reaction, I made the point that the consequence was not going to be immediate or germane for the purpose of the suit filed by the Economic Freedom Fighters (EFF), United Democratic Movement (UDM) and Congress of the People (COPE) (and later joined by the official Democratic Alliance (DA) opposition party) against parliament speaker, Baleka Mbete, and Mr Zuma at the Constitutional Court. I thought the Chief Justice was right asserting how we should not allow the expediency of the moment overshadow the need to ensure the seperation of powers and the protection of the sanctity of the judiciary itself. My friend, who as it happens is actually Nigerian (I though he was South African until I enquired and found out he was an old friend), stuck to his guns. He was emphatic that the court was right in censuring the legislature for a major operational and legislative lacuna (his words) that could lead to a one party state at the minimum and a dictatorship at the worst. “It was right in prodding parliament to do right.” I agree.

Not enough
But what exactly did the court rule on? The foundation was the earlier Nkandla judgement of the Constitutional Court and Mr Zuma’s failure to implement remedial actions for some time after anti-corruption ombudsman, the “Public Protector”, released her report on it – relates to the use of public money to fund what Mr Zuma deemed security upgrades to his homestead in Nkandla, his birthplace. The Court agreed with the ombudsman that the upgrades constituted more than just repairs to enhance the security of the president. The application by the EFF and others was that the parliament failed to ensure measures and processes in place to ensure Mr Zuma (or any public official for that matter), would not be able to manipulate the system like he did; especially as in addition to the Public Protector’s remedial action, the court also ruled punitively on the matter. As a way of forcing the parliament to institute a process, the EFF and others wanted the court to order it to convene a committee to determine whether Mr Zuma, by his conduct on Nkandla on the one hand and his actions after the court’s earlier ruling on the other, was guilty of any impeachable conduct under section 89 of the Constitution. Problem was that parliament had no process in place to ensure section 89 of the Constitution would be abided by properly and clearly in the event. The legislature’s argument, via its acting speaker at the time of the application, was that the hallowed chambers’ current rules suffice to deal with the section 89 process. The Court disagreed. And it was scathing in its rebuttal. Quoting the judgement: “The Court found no rules were in place governing the section 89 process and that the Assembly was bound by the Constitution to do so.” In a nutshell, all that the National Assembly did, from the motions of no-confidence to the various Question and Answer (Q & A) sessions, were not sufficient for the section 89 requirements. There is a vagueness on how and what constitutes grounds for removing the president.

Act, act, act
So what should parliament now do? It should start by addressing the primary concern raised by the court. It ordered amongst other things that the Assembly should “make such rules regulating the section 89 (1) procedure within 120 days from the date of the order…[and] initiate a process under section 89 (1) in terms of the newly developed rules, within 180 days from the date of [the] order.” On the specific case of Mr Zuma, it remains very doubtful that he would ever leave office via an act of parliament. If Mr Zuma ever leaves office before the expiration of his term in 2019, it would likely either be by resignation or a recall by his party. Or the other thing that must become all our lots at some point; whether we like it or not.

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