When the Constitutional Court (Con Court) of South Africa pronounced last year that President Zuma “failed to uphold, defend and respect the Constitution as the supreme law of the land”, it meant in large measure that he was not fit and proper to hold the position of President. This further meant that he had breached his oath of office to “obey, observe, uphold and maintain the Constitution and all other Law of the Republic”. Semantics aside, any other President in Zuma’s position would have henceforth resigned voluntarily. The very Chief Justice who swore him in was the one telling him that the very oath of office he had administered on him was the very one he broke. How ironic! The Economic Freedom Fighters (EFF) has consistently maintained that President Zuma’s presidency is illegitimate and correctly so after the Con Court pronouncement. Bear in mind that the Con Court was not specifically asked to make an order to remove him in the event it made adverse findings against him but that once he had failed to uphold the Constitution, his core duty, his appointing authority being Parliament should have removed him from office if he didn’t voluntarily do so himself. Even if the Con Court was subsequently asked to remove him following its findings, it would have declined, I want to believe, to do so on account of separation of powers – that is, the responsibility of removing him is vested in Parliament and correctly so. Where is the correctness of the illegitimacy?
The EFF’s argument is largely anchored on the failure of President Zuma to respect and observe the terms and conditions of his contract – the Constitution. The South African Constitution provides that a President can be removed from office through Section 89(1) which states that “The National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the grounds of- (a) serious violation of the Constitution or law (b) serious misconduct; or (c) inability to perform the functions of the office”. EFF’s political theatrics and drama aside and based on (a) above, it is a foregone conclusion that President Zuma has seriously violated the constitution, a solid ground for removal. Failure to do so by the appointing authority, the National Assembly, is a serious indictment on itself because it failed to take action against its own employee who violated the employer’s code of conduct and the contract of employment. It is common cause that all procedural and administrative processes were set in motion to effect removal but that the employer grew cold feet, arguably to save the party from embarrassment. Whether the EFF had a requisite two thirds of members of the National Assembly is neither here nor there – the point is that there was a solid and valid ground to remove President Zuma from office as per Section 89(1) but the National Assembly abdicated its responsibility to do so. Some members of President Zuma’s party, the ANC, also asked him to resign following the Con Court pronouncement though their call somewhat faded during the passage of time. Indications are that though there were undercurrents before the Con Court decision, the ANC looks a highly and deeply divided party emanating from the Con Court ruling.
The Con Court was scathing both on the President and the National Assembly. It said that “The National Assembly is also said to have breached its constitutional obligations imposed by Sections 55(2) and 181(3) of the Constitution….Skinned to the bone, the contention here is that the National Assembly failed to hold the President accountable”. But National Assemblies including Botswana have become so powerful not on account that this power is derived from any legal or constitutional framework, but simply that it is enhanced by picking and choosing which decisions from the courts to comply with and which ones to ignore, with contempt. I do not and will never agree with the EFF’s theatrics and drama because they spoil their otherwise other progressive arguments. I, however, agree with it on the point of President Zuma’s illegitimacy based on the findings of the Con Court. The argument by Judge President of the Court of Appeal Justice Kirby that “In Botswana there is no real separation between the executive and the legislature” sums up why President Zuma is still at his presidential desk. Numerical advantage in the legislature and narrow political expediency have become powerful tools to ignore and render the rule of law inconsequential as in President Zuma’s case. After all, President Zuma is on record for saying the ANC comes first before his country.