What would it take for President Jacob Zuma and the African National Congress (ANC) to understand that South Africa is a constitutional democracy, and provide desperately needed leadership to protect this fundamental principle? Asks Professor of Public Affairs at Tshwane University of Technology, Mashupye Herbert Maserumule.

President Zuma’s apology and the ANC’s acceptance and defence of it are missed opportunities to reclaim credibility and the moral high ground. They follow the Constitutional Court’s ruling on the Nkandla saga – the scandal over the use of public funds on the president’s private homestead.

Apology is a noble gesture. It is expression of remorse. But what’s at issue here is far more than just being remorseful. A dereliction of a constitutional duty is serious a matter.

The Constitutional Court provided judicial leadership with its ruling in protecting the state against the competition to profit from it.

It redeemed a pledge of the liberation struggle in reiterating that South Africa shall be a constitutional democracy. But it has always been clear that the practical implications and implementation of the ruling would hit a snag.

Why Zuma won’t be removed

Constitutional democracy is not only about court pronouncements. It is also, more importantly, about their implementation, which shows respect for the rule of law. The president ignored the remedial order of the country’s public protector. He therefore violated the constitution. This issue cannot simply be reduced to an apology. This is a serious indictment. The constitution is unambiguous on what ought to happen in this instance: parliamentary processes for the removal of the president must be invoked.

Sadly, the National Assembly also failed in its constitutional duty to hold the president and the executive accountable. Its complacency is writ large in its conduct on the Nkandla matter. Herein lies the snag in implementing the ruling.

Removing a president is a parliamentary process and the country’s opposition parties are pursuing the matter. But to be successful at least two thirds of the members of the National Assembly need to vote in favour.

The ANC members in the National Assembly are not likely to support the motion to remove Zuma. The opposition parties do not have the numbers to secure the required threshold. Combined they have 151 seats against the ANC’s 249 out of the total of 400.

And the Constitutional Court ruling implicates the ANC in a big way as the majority party in parliament. It reveals a contrived confluence of the executive and legislative authorities in riding roughshod over the supremacy of the constitution. The National Assembly is therefore equally at fault as the president.

If fault can be equally apportioned, shouldn’t the parliament dissolve itself? Shouldn’t the same happen to the cabinet? But, if all this happens, what would be left of the state? This lays bare the intricacy of implementing the Nkandla ruling. Adding to this is that the power to dissolve the National Assembly before the expiry of its term is assigned to the president, whereas that of impeaching him is assigned to the National Assembly. In the game of chess, we say checkmate.

Two powers that, in the case of one’s aberration, should dissolve each other are equally at fault in the same matter. The ANC exploited the possibilities that this has created. It imposed its leadership on a matter exclusively reserved for the National Assembly from its Luthuli House head office.

Its stand and support of Zuma’s apology effectively put a stop to the possibility of his removal as the head of state and that of the national executive. One thing that came out very clearly is that the line between the state and a political party is blurred. Even more worrying is the ANC’s display of arrogance. As a governing party, it seems averse to self-correction – an opportunity the Nkandla ruling presented.

But, what could it have done differently?

Reclaiming the moral high ground

Ironically, the only feasible way of removing the president lies outside the prescribed formal structures of the constitutional processes. In other words, the answer to the challenge of realising the implications of the ruling of the Constitutional Court is not in Parliament in Cape Town, or the Union Buildings – the seat of government – in Pretoria. It is in Luthuli House in Johannesburg. Perhaps this is a context against which the ANC’s press briefing on the matter should be understood. It was a lost opportunity to reclaim the moral high ground.

The ANC should have persuaded Zuma to resign from the position of the president of the Republic of South Africa and leave with some decorum. A precedent for this exists. Thabo Mbeki was recalled by the ANC in 2008, although this was not because of violating the constitution, as is the case with Zuma.

Mbeki had angered Zuma’s faction by dismissing him as the deputy president of the country, following his implication in the corruption trial of his financial advisor and friend Schabir Shaik. Mbeki lost the presidency of the ANC in 2007, and that of the country in 2008. Some argue that Zuma’s chance of being recalled cannot be compared with the Mbeki situation. Perhaps they are right, but the reasoning is strange.

Arguing that recalling Mbeki was easy because his position as the head of the state was already weakened because he had lost the presidency of the ANC is tantamount to saying that being both the head of state and that of a party guarantees impunity for deviance from the constitution.

For what it’s worth, Mbeki did nothing untoward to warrant the disproportionate wrath of the ANC. This is in stark contrast to what Zuma did, as the court determined. He violated the constitution.

The ANC should have persuaded Zuma to resign, or it should have recalled him to reaffirm the virtue of public office. Thereafter, it could have invoked its ingenuity and spun his resignation or recall to recapture the moral high ground and assert its commitment to protecting democracy and the future of South Africa.

It should have then tried as much as possible to reach out to the citizens and clearly communicate the message that, in the words of English economist Alfred Marshall in 1919:

The state is the most precious of human possessions; and no care can be too great to be spent on enabling it to do its work in the best way.

This article was originally published in The Conversation.

The Conversation