Testing the constitution

On Friday January 20 Donald Trump became the 45th president of the United State of America.

Shortly thereafter, he set about putting to the test the 228-year-old American constitution, by testing the limits and latitudes of the executive powers of his office.

Within a week of taking office he signed a presidential order which implemented a travel ban on citizens of six majority Muslim countries.

It was immediately challenged in federal court in Brooklyn by the American Civil Liberties Union, acting on behalf of two Iraqi immigrants who were barred from re-entering America by the ruling.

Although federal judge Ann M Donnelly did not set aside Mr Trump’s order, she did rule that people detained at ports of entry because of the ban, could not be deported to their countries of origin.

Acting attorney general Sally Yates instructed Justice Department lawyers to not defend Mr Trump’s travel ban, questioning its lawfulness, and was fired for her actions.

In short order, in response to a number of filings across the country, courts ruled against Mr Trump’s order, and accused of constitutional and legal overreach, he set about amending it.

Resistance to the travel ban increased and in March a number of attorneys-general jointly filed suit in the Western District of Washington Court. New York attorney general Eric Schniedermann said in a statement: “President Trump’s order is a Muslim ban by another name, imposing policies and protocols that once again violate the Equal Protection Clause and Establishment Clause of the United States constitution.”

Last week, the US Supreme Court, the equivalent of our Constitutional Court, ruled that the amended travel ban could go partially into affect – applicable only to people who have no verifiable connection with the United States – until it hears the matter in October.

There’s more of course. Mr Trump summarily dismissed FBI director James Comey on Tuesday May 10, ostensibly at the recommendation of Justice Department officials because he had mishandled the investigation into Hilary Clinton’s misuse of a private email server while she was US Secretary of State.

It emerged later, that the dismissal followed Mr Trump’s “request”, which Mr Comey ignored, to shut down an FBI investigation into disgraced National Security Adviser Michael Flynn’s disclosure of top secret intelligence to senior Russian adiminstration officials during Mr Trump’s presidential campaign.

After Mr Comey’s dismissal, former FBI director Robert Meuller III was appointed special counsel to head an investigation into ties between Mr Trump’s presidential campaign and Russian officials.

On Wednesday June 14 it emerged that Mr Trump is under investigation by Mr Meuller for obstruction of justice because of his dismissal of Mr Comey.

And most recently, it emerged that Mr Trump is considering firing Mr Meuller.

Mr Trump, it seems, believes that he is above the law, and that he can do precisely as he pleases. And on The Hill – Washington DC – there is talk of impeachment in the air.

If all this sounds familiar, it should.

We too have a president, who has repeatedly put our constitution to the test in his eight years in office, and thus far, has come off second best in every instance.

President Zuma’s appointment of Menzi Simelane as national director of public prosecutions was ruled irrational and unconstitutional in October 2012 by the Constitutional Court.

In June 2015, the executive was found to be in contempt of court because it did not execute an International Criminal Court warrant of arrest for Sudanese president Omar al-Bashir, for crimes against humanity.

In March last year, in its landmark ruling in the Nkandla matter, the Constitutional Court found that Mr Zuma had broken his oath of office.

His chosen SABC chief operating officer, Hlaudi Motsoeneng, has finally been ejected from the SABC, after numerous court rulings and appeals.

The Spy Tapes saga – the 783 charges he faces in relation to the arms deal – drags on, with it inevitably coming to a head in the Constitutional Court after passage through the Supreme Court of Appeals.

And just the other day, the Constitutional Court ruled against Mr Zuma once more, when in a detailed and explicit declaratory judgment it ruled that a secret ballot is permissible in the upcoming no confidence motion in Mr Zuma, proposed by the DA after Mr Zuma replaced Finance Minister Pravin Gordhan and his deputy, Mcebisi Jonas in a March late-night cabinet reshuffle.

Both of these self-styled strong men, believe that they have done nothing wrong. Both of them also believe that they are doing a good job as president.

In a campaign speech last year, Mr Trump said: “Our country needs a truly great leader, and we need a truly great leader now.”

After 100 days in office he said: “It’s a false standard, 100 days, but I have to tell you, I don’t think anybody has done what we did over the 100 days.”

Last week in the National Assembly during question time, Mr Zuma said: “ the people of South Africa have not made a mistake in electing me as president. I am fit and I’m doing it proper.”

Richard M Nixon avoided impeachment over the Watergate scandal by stepping down during his second term in office.

Bill Clinton avoided impeachment over the Monica Lewinsky affair by a gnat’s ball hair, only because the House split along party lines during the vote, and a two thirds majority was unattainable.

The degree of enmity that Mr Trump has generated, across party lines, suggests that he may not be as lucky, if it comes to an impeachment process, which may well happen.

The only hope we have, is that in the upcoming no confidence debate on Tuesday August 8, sufficient ANC caucus members have the guts to vote their conscience, secret ballot or not, but don’t hold your breath.

But after Messrs Trump and Zuma go, and go they eventually will, both countries will at least have a far clearer picture of the limits and latitudes of executive power in relation to their respective constitutions.

And hopefully those who follow them will give pause for thought, before they choose to overstep the mark.