06/09/2017 06:06 SAST | Updated 06/09/2017 06:07 SAST

ConCourt Ruling Unlikely To Hurt Zuma

It sure is difficult to predict the outcome, but, either way, Zuma will most likely remain untouched.

Photo credit should read MARCO LONGARI/AFP/Getty Images
MARCO LONGARI via Getty Images
Photo credit should read MARCO LONGARI/AFP/Getty Images

Opposition parties on Tuesday struggled to persuade Constitutional Court judges to rule on the conduct of National Assembly Speaker Baleka Mbete and President Jacob Zuma.

It was a battle of legal intellect in the highest court of the land –- on one side, gutsy lawyers representing the opposition and, on the other, a panel of 11 judges who took turns viciously dismantling the arguments before them.

It would be difficult to predict the outcome, but, either way, Zuma will most likely remain untouched.

'Why did you come here?'

Following a failed attempt to have Parliament impeach Zuma last year, the EFF, along with the United Democratic Movement, the Congress of the People and the DA, are now arguing for the Constitutional Court to assist in their efforts to get rid of the president.

The parties debated for the court to declare that Mbete failed to put in place appropriate mechanisms to scrutinise the president's violation of the Constitution in relation to the upgrading of his Nkandla homestead and to hold him accountable thereafter.

Advocates such as Tembeka Ngcukaitobi and Dali Mpofu also urged for the court to direct the National Assembly to convene a "fact-finding" inquiry into Zuma's conduct to determine whether he is guilty of an offence that warrants his impeachment.

But the judges did not take the debate lightly.

Chief Justice Mogoeng Mogoeng and his panel grilled Ngcukaitobi and Mpofu, demanding clarification on why the opposition parties brought their dispute to court when it could be resolved in the National Assembly.

"What is there to investigate? You have the benefit of [the] Public Protector's report and the pronouncement of this court ... What uncertainty do you want to clarify?" Mogoeng asked.

"Why don't you propose an ad hoc committee to [Mbete]? Why should the court do it?"

It was clear by Mogoeng's words that the court was reluctant to breach the separation of powers between the three arms of the state –- that being the legislative, judicial and executive branches.

The panel was unwavering, constantly bringing up the question of whether opposition parties had exhausted every avenue available to them within the prescripts of the National Assembly before seeking the court's intervention.

"Must we assume that 27 question-and-answer sessions were insufficient? That we must set up another platform for the same thing and it will get different results?" Mogoeng asked.

But the opposition would not go silently.

"Those questions are monologues where you ask a question and you get a response. Nobody is going to switch off the mics in an inquiry. Nobody is going to call the white shirts in an inquiry. Both the magnitude and the number of question sessions are irrelevant if there is no substance to the findings," Mpofu argued.

The DA's Advocate Steven Budlender also argued for the court to give guidance on the issues that the National Assembly should consider in formulating legislation or rules pertaining to impeachment investigations and hearings.

Mbete's defense

The National Assembly, represented by Hamilton Maenetje, was clear in its response. It believes Mbete conducted herself within the prescripts of the Constitution and within her powers.

In its written submissions, the National Assembly outlined that questions were posed to Zuma and that motions of no confidence –- all of which unsuccessful -– were considered, debated and voted on.

"It is our submission that what appears to be at issue is the end-result of the vote, as opposed to the appropriateness of the mechanism adopted by the National Assembly," it said.

"In this regard, it is our submission that the National Assembly has demonstrably fulfilled its constitutional obligations in holding the president to account."

What does it mean for Number 1?

When the Constitutional Court ruled on the motion of no confidence being held by secret ballot, the National Assembly opted to remain impartial and handed over the decision to Mbete. But, what became clear was that the court wanted her to favour the interests of good governance over the interests of the ANC.

Although the court would not insist on the route Mbete had to take on the matter, their judgment was fairly expressive.

At the time, the chief justice began mostly by outlining the role of good governance within a constitutional democracy, saying public office bearers who occupy positions of authority have power -- power that comes with responsibilities -- and that is not to be used for the advancement of "personal or sectarian interests".

They put the decision in Mbete's hands while remaining objective, and, at the same time, they subtly hinted on which way they thought it should go.

Perhaps the same will be done now -– although it is difficult to say.

If the opposition parties lose, they would have to explore new ways to oust the president -– most of which they have already exhausted. This now seems like a last-ditch attempt.

But even if they succeed, and the court rules that an inquiry be held, it will give the opposition another chance to embarrass the president in Parliament. But that's as far as it will go.

For a successful impeachment, two-thirds of all MPs need to vote against Zuma, 60 more than required for a vote of no confidence. The task is therefore impossible.

Zuma's power and influence in the ANC should not be underestimated. It is doubtful that even damning evidence revealed in Parliament after an inquiry would persuade a substantial majority of ANC MPs to turn their backs on their president.