Johannesburg – After more than seven hours of arguments the Constitutional Court has reserved judgment in an application brought by the EFF and other opposition parties trying to have President Jacob Zuma impeached.
The opposition parties told the court that they wanted the establishment of a fact-finding ad hoc committee that would force Zuma to answer questions about his conduct during the Nkandla debacle.
The parties, which also included the UDM and Cope, strongly felt that no action had been taken against Zuma after the Constitutional Court ruling in March 2016 which found that Zuma had failed to uphold, defend and respect the Constitution.
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They said there was no doubt that there was prima facie evidence for impeachment proceedings to be instituted against Zuma.
However, Hamilton Maenetje, representing National Assembly Speaker Baleka Mbete, said the Speaker’s office would be acting inconsistently were it to remove Zuma.
“Because the Speaker plays the role of a referee, it would be inconsistent with her office to initiate the removal of Zuma,” Maenetje told the full bench of justices.
Removing Zuma would be ‘inconsistent’
Maenetje was arguing against an application brought by the EFF, the UDM and Cope against Mbete and Zuma for various orders directed against them.
The orders include one declaring that Mbete failed to put in place all appropriate procedures and mechanisms to hold Zuma accountable following the president’s failure to implement recommendations in the former Public Protector’s report into Nkandla in 2014.
Maenetje admitted to the court that he personally accepted that Zuma had violated the Constitution.
“As a lawyer, the conduct is a serious violation,” he said.
“Our submission is that judgment rests with National Assembly. [It] would be inconsistent with separation of powers.”
He asked the court not to declare failure to fulfil constitutional obligation on Mbete’s part.
When asked why Mbete had not taken the initiative to establish an ad hoc committee to investigate Zuma’s conduct, Maenetje said: “The Speaker doesn’t set up ad hoc committees, it’s the responsibility of National Assembly. She doesn’t have powers to.”
Maenetje added that the fact that the president had not been impeached didn’t mean that the Speaker had failed to take action.
The justices grilled Maenetje, saying that holding executives accountable rested on all the members of the National Assembly, including the Speaker.
Inquiry an opportunity for Zuma
Advocate Dali Mpofu, representing the UDM and Cope, said he believed that a fact-finding inquiry would force Zuma to account for his actions.
Mpofu said the 27 question and answer sessions conducted by the National Assembly had been insufficient. He said an inquiry would allow interrogators to probe further and request evidence to prove the truth of what Zuma had said in his statements.
He said question and answer sittings differed from inquiry hearings.
“In an inquiry nobody is going to ask you to sit down or raise a point of order,” he said.
Mpofu said the inquiry would be an opportunity for Zuma to answer questions.
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“Nobody is going to tell you that that question had been answered. Nobody is going to switch off the mic. We are coming to the court to say the correct process is that there must be an inquiry,” he said.
Mpofu said it should be determined whether Zuma violated the Constitution knowingly or if he was given bad advice.
“We are not vindicating his (Zuma) rights, we are vindicating the rights of the people,” he said.
Responsibility lies with the Speaker
However, Deputy Chief Justice Raymond Zondo said there had been poor communication between the parties.
“Does this not tell us that there is a problem? These parties are not talking to one another?” Zondo asked. He wondered why opposition parties were turning to the courts for answers when solutions were available in the National Assembly.
He said if parties in Parliament communicated better, issues would be resolved with more success in the House.
Earlier, Chief Justice Mogoeng Mogoeng asked the EFF if it was asking to “kill” Zuma’s term in office.
“You are asking to kill the president’s term of office, have him removed?” Mogoeng quizzed EFF lawyer Advocate Tembeka Ngcukaitobi. “In order to kill whatever it is you want to kill, you can shoot or use tradition…or knife. Your client wants to kill the president’s term of office.”
Mogoeng repeatedly asked all the lawyers representing the opposition parties whether they doubted the Nkandla judgment which found that Zuma’s conduct amounted to a serious violation of the Constitution.
“We have no doubt,” Ngcukaitobi replied.
However, Mpofu said there had been doubt, adding that the doubt was sowed by the Nkandla judgment and the former Public Protector’s report.
But Ngcukaitobi argued that it couldn’t be said that an investigation into Zuma’s conduct had been conducted.
“The primary responsibility to hold someone accountable lies with the Speaker…There is no dispute that there is a prima facie impeachable case against the president,” he said.
