A combative Chief Justice Mogoeng Mogoeng has questioned the EFF’s Advocate Tembeka Ngcukaitobi on whether the Economic Freedom Fighters (EFF) are not asking the Constitutional Court to grant a declaratory order that will usurp the role of the National Assembly.
The EFF and other amicus curiae are this morning in Braamfontein asking a full bench of the highest court in the land to grant them an order that will compel Speaker of Parliament Baleka Mbete to establish a committee or process that will determine if President Jacob Zuma should be impeached for violating the constitution.
During the earlier part of his submission to the court, Ngcukaitobi told justices of the court: “There is no reason for this court not to grant the order we are seeking” – which is asking for the establishment of a fact-finding multiparty committee that will investigate, cross-examine and prepare a report for the National Assembly.
“It is unclear why the speaker is opposing the case when she does not deny prima facie evidence of impeachable conduct,” Ngcukaitobi told the court, with several justices retorting that the court had already determined that Zuma violated the constitution and therefore the censure for this transgression must be left to parliament itself.
Ngcukaitobi argued that by the president admitting he knew that some of the security upgrades effected on Nkandla were of a private nature, he was in effect acknowledging that public funds had been used for Nkandla, and therefore the request to order Mbete to set up this committee did not blur the separation of powers principle, and there was a constitutional obligation on the court to make the order.
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“There is nothing preventing the speaker from appointing a sitting judge to preside over a hearing into the conduct of the president. We will suggest that this is a preferable route; we need someone who is independent. A retired judge is perfect. On the rules, she could appoint a multiparty committee,” continued Ngukaitobi.
Deputy Chief Justice Ray Zondo reminded the EFF it (the matter) “did not go back to her [Mbete]” and “all we are asking you is a process that is in the rules, we are asking you to do what is permitted by the rules”. He also questioned why political parties would opt to approach the court when internal processes to resolve the matter had not been ventilated.
Conceding that Mbete had never disputed that the constitution empowers her to set up a committee to interrogate the conduct of the head of the state, Ngcukaitobi expressed the EFF’s concern that parliament was not holding Zuma to account. It was “disturbing at a level of principle … the obligation to hold the executive accountable. It is the same conduct that was displayed during the public protector report and during the motion of no confidence.”
He said the court must repeat the same message to the speaker because “she keeps deflecting attention away from her responsibility to hold the executive accountable. [She] essentially assigns the responsibility sideways and avoids responsibility … the speaker overlooks the duty to deal with corruption in terms of Section 79 of the constitution.”
Chief Justice Mogoeng went for the jugular: Why don’t you consult the speaker and say the SABC process was wonderful and we abandon the one that had failed and propose an ad-hoc committee … Why should the court do it on your behalf? I have a discomfort [regarding the separation of powers principle].”
The case continues.