But that is not all. The Constitutional Court has also found that the National Assembly’s failure to hold the President accountable – by ensuring that he complies with the remedial action against him – is inconsistent with its obligations to scrutinise and oversee executive action and to maintain oversight of the exercise of executive powers by the President. In particular – the National Assembly failed to give attention to or intervene by facilitating his compliance with remedial action.

The Public Protector investigated allegations of improper conduct or irregular expenditure relating to the security upgrades at the Nkandla private residence of the President. She concluded that the President had failed to act in line with his constitutional duty, as well as his ethical obligations, by knowingly deriving undue benefit from the irregular expenditure of State resources. In line with her constitutionally mandated powers to take appropriate remedial action, she directed that the President, as assisted by certain State organs, should work out and pay a proportionate amount that had unduly accrued to him and his family. Additionally, the President was to reprimand the Ministers involved in the project, for various wrongdoings.

The Public Protector’s report was duly submitted to the National Assembly to enable it to exercise its responsibility for oversight over the President and the Executive, and to ensure the report’s implementation. Instead, the National Assembly appeared to shield the President from having to answer questions on accountability. The National Assembly then created two ad hoc committees comprising its members to examine the Public Protector’s report, as well as other reports including the one compiled, also at its insistance, by the Minister of Police (members of opposition parties in the committee refused to participate in the proceedings). After endorsing the report by the Minister of Police exonerating the President from liability, and a report to the same effect by its second ad hoc committee, the National Assembly resolved to absolve the President of all liability. As a result, the President did not comply with the remedial action ordered by the Public Protector. It is apparent that the Members of Parliament in the ad hoc committees acted in accordance with the instructions of their political party and failed to consider the issues raised, in good faith.

This suggests that the Members of Parliament gave greater weight to their political affiliation, rather than to their constitutional duty to hold the President accountable as per the demands of the Constitution. While all politicians may be expected to be loyal to their political parties, such loyalty should remain compatible with the Constitution. This loyalty should not be an abrogation of the constitutional duty to hold the President accountable.

The chaotic scenes the nation has come to expect in the joint sittings of the houses of Parliament stem from the National Assembly’s failure to exercise its constitutional obligations. Members of Parliament have to act within the confines of legality and their conduct must meet the demands of the Constitution. 

Members of Parliament should bear in mind that oversight of the President’s executive powers is not a challenge to the powers of the governing party. Rather, this oversight ensures a healthier, more open, transparent and democratic process of governance. The constitutional obligation to hold the President and Executive accountable is not inconsistent with the party system, as long as the party system recognises the supremacy of the Constitution.

The Court nonetheless cautioned that the National Assembly is not obliged blindly to accept reports from any institution, but has a primary duty to satisfy itself about the correctness of the Public Protector’s findings and remedial action before holding the President accountable. The Constitution further gives the National Assembly discretion on how best to carry out the oversight function.

In line with the notion of separation of powers, the Court noted that it could not prescribe to the National Assembly the sort of mechanisms to be adopted in the scrutiny process, nor could the Court give the National Assembly a mandate on how to hold the Executive accountable in order for Parliament to fulfil its oversight function.

The official opposition party in Parliament has since tabled a motion calling for the President’s impeachment in line with section 89(1)(a) of the Constitution, which states that following a serious violation of the Constitution or the law, the National Assembly may, by a resolution of two-thirds of its members, remove the President from office. It must be borne in mind that the Constitutional Court rejected the President’s defence that he was acting in good faith on the strength of wrong legal advice. The Court made it apparent that this argument could not be raised to detract from the illegal nature of his conduct.

This is the opportune moment for the National Assembly to redeem itself and rescue the nation from the brink of a constitutional crisis – with its members voting in line with constitutional dictates, and not on the basis of perceived party loyalty.

To reiterate the decision of the Court:

Certain values in the Constitution have been designated as foundational to our democracy. This in turn means that as pillar-stones of this democracy, they must be observed scrupulously. If these values are not observed and their precepts not carried out conscientiously, we have a recipe for a constitutional crisis of great magnitude. In a State predicated on a desire to maintain the rule of law, it is imperative that one and all should be driven by a moral obligation to ensure the continued survival of our democracy.”             

By Phephelaphi Dube: Legal Officer; Centre for Constitutional Rights