Anybody who watched proceedings in the Constitutional Court last Tuesday will have seen jurisprudence in the making.
Seven hours of argument, in which opposition party counsel attempted to persuade the justices that Parliament had failed in its constitutional duty to hold President Jacob Zuma to account over Nkandla, ended in judgement being reserved. As usual, we have no clue when the justices will render judgment in this matter, but when it happens, it will be a landmark.
At issue, is the oppositions contention that Parliament, through speaker Baleka Mbete, must be compelled to constitute a Parliamentary enquiry into Mr Zuma’s conduct to establish whether or not his actions – or inactions – constituted grounds for impeachment.
Theaargumentaand counter-argument put forward by the respective counsels was tortuous and in many instances, highly technical, but it was the relentless interrogation of the respective parties positions by the justices, led by Chief Justice Mogoeng Mogoeng, which affords us an insight into the court’s thinking in this matter.
There is an inevitable tension between the three arms of government – the executive, the legislature, and the judiciary – which is circumscribed by the separation of powers doctrine.
It is not in the interests of good governance that any of the three meddles in the affairs of the others, because by definition, each has a defined mandate, obligations and powers. There is little, if any, overlap.
This is probably why, whenever the executive or the legislature (usually represented by the Speaker), is hauled into court – which happens all too often these days – and the court rules against the executive and/or the legislature, there is often a thinly veiled suggestion that the court is exceeding its authority and transgressing the separation of powers doctrine.
The term “lawfare” has emerged, coined by an embattled ANC and the executive, to describe the actions of the opposition and an increasing number of civil society organisations, that turn to the courts when they are unhappy with the manner in which the ANC government executes its electoral mandate.
With nauseating regularity, the ANC expresses its fury that its electoral majority is not respected by the opposition and disaffected civil society. It insists that resorting to the courts to get right what the ANC’s parliamentary majority consistently thwarts, is wrong, and that if the opposition wants to implement its own policy platform, it must win an electoral majority. Distilled to its purest form, the ANC’s plea is: “Leave us to do what our legitimate electoral majority entitles us to do.”
The narrative, albeit it beguiling, is fundamentally flawed.
The legislature makes law, the executive implements law, but it is the judiciary that interprets the law.
Every case that has come before the various courts in the recent past, in which the executive or the legislature is cited as respondent, has resulted in a ruling that either provides clarity on the legal issue at hand, or ensures that the respondents are held accountable.
In the Omar Al-Bashir matter, the executive was found to have broken the law by allowing Al-Bashir to avoid arrest while he was in South Africa attending an OAU summit. In a subsequent case, Government’s consequent decision to withdraw from the Rome Statute was overturned, and the executive was instructed to pursue a legislative programme to effect the withdrawal – Parliament passed the law which binds us to the Rome Statute, so only Parliament can unbind us, not the executive at its own behest.
There are many more examples, but these two related matters illustrate the point that the judiciary ensures the rule of law prevails, and the checks and balances, which are an integral part of our democracy, ensure Government in general, is held accountable.
In March last year, the Constitutional Court ruled that Mr Zuma failed to uphold the Constitution when he did not comply with then Public Protector Thuli Madonsela’s remedial action regarding payment for the upgrades to his Nkandla homestead.
Mr Zuma subsequently apologised to the nation for the “frustration and confusion” caused by the Nkandla matter.
The applicants contend in the matter argued last Tuesday, that Parliament, led by National Assembly Speaker Baleka Mbete, failed to hold Mr Zuma to account, despite the Constitutional Court’s damaging ruling.
Although Ms Mbete, through her counsel, did admit that Mr Zuma had committed a serious infraction of the Constitution, the subsequent debate in Parliament afforded opportunity for punitive action against Mr Zuma, in the form of a motion of no confidence, which failed, as has every other one.
She further contends, that Parliament – read the opposition – has the capability to constitute an ad-hoc committee to investigate whether there are grounds for impeachment, so there is no need to ask the court to compel her office to do so.
Whichever way the court rules, it will do so with scrupulous consideration for the separation of powers doctrine, while further clarifying the body of law which governs this heavily contested terrain.
And for that, we ought to be eternally grateful.