TEBOGO KHAAS | Constitutional accountability cannot be deferred indefinitely

The Constitutional Court’s judgment in EFF and Another v Speaker of the National Assembly and Others may well become one of the defining constitutional decisions of SA’s democratic era.

Beyond the immediate political implications for the Phala Phala matter, the ruling fundamentally reshapes the constitutional architecture of presidential accountability and clarifies parliament’s obligations in a constitutional democracy.

Let me explain.

At its core, the judgment affirms a simple but profound principle: constitutional accountability cannot be subordinated to political convenience.

For years, SA’s constitutional system has wrestled with an uncomfortable tension between party-political majoritarianism and constitutional oversight. The constitution envisages parliament not merely as a legislative chamber dominated by party arithmetic but as a constitutional institution duty-bound to scrutinise and oversee executive conduct.

Yet in practice, parliamentary accountability mechanisms have too often buckled under the weight of partisan loyalty.

In constitutional democracies, parliament does not exist to shield presidents from scrutiny. It exists to ensure that public power is exercised lawfully, rationally and transparently

This judgment directly confronts that problem.

The Constitutional Court held that rule 129I of the National Assembly Rules was unconstitutional because it allowed a parliamentary majority to terminate impeachment proceedings even after an independent panel had found prima facie evidence that a president may have committed serious constitutional violations or misconduct.

In doing so, the court drew a critical distinction between two stages of impeachment proceedings.

The first stage concerns whether sufficient prima facie evidence exists warranting a full inquiry. The second concerns the ultimate political question of whether the president should be removed from office.

The court held that parliament retains discretion at the final removal stage, but not at the accountability threshold stage. Once credible prima facie evidence exists, parliament cannot simply vote the matter away for reasons of political expediency. The inquiry must proceed.

That distinction is constitutionally significant because it rejects the notion that impeachment processes are purely political exercises controlled entirely by parliamentary majorities.

Instead, the court affirmed that section 89 of the constitution creates enforceable accountability obligations. Parliament is not merely empowered to act; in certain circumstances, it is constitutionally obliged to act.

The ruling, therefore, deepens the jurisprudence established in EFF v Speaker of the National Assembly and subsequent section 89 cases, where the court previously held that parliament has a duty to create effective mechanisms to hold the executive accountable.

This latest judgment takes the next logical step: accountability mechanisms that permit politically convenient avoidance of scrutiny cannot be constitutionally effective.

The judgment also speaks to a broader democratic pathology that has increasingly afflicted South African governance: the conflation of party interests with constitutional obligations.

In constitutional democracies, parliament does not exist to shield presidents from scrutiny. It exists to ensure that public power is exercised lawfully, rationally and transparently. Members of parliament swear allegiance to the constitution, not to transient factional or party-political interests.

Critics of the ruling will undoubtedly argue that the court has ventured too deeply into parliamentary terrain and upset the separation of powers doctrine. But that criticism misunderstands constitutional supremacy.

Constitutional accountability must coexist with another equally important constitutional principle: the rule of law and the right of every person to lawful recourse through the courts

The separation of powers does not grant parliament immunity from constitutional scrutiny.

On the contrary, the judiciary has an obligation to intervene where parliament fails to fulfil constitutional duties expressly imposed upon it. Importantly, the court did not usurp parliament’s ultimate authority to remove a president. It merely held that parliament cannot evade the constitutional duty to properly investigate serious allegations against the head of state.

That is not judicial overreach. It is constitutional guardianship.

Equally important is the court’s treatment of accountability as a substantive constitutional value rather than a rhetorical aspiration. The judgment repeatedly anchors its reasoning in sections 1(d), 42(3) and 55(2) of the constitution, reinforcing that accountability is foundational to South Africa’s constitutional order and not optional political etiquette.

At the same time, however, constitutional accountability must coexist with another equally important constitutional principle: the rule of law and the right of every person to lawful recourse through the courts.

President Cyril Ramaphosa, like any other citizen, retains the constitutional right to challenge the section 89 panel report through judicial review proceedings. The apex court judgment does not extinguish that right, nor could it. The right to approach the courts and seek judicial relief is itself a foundational component of constitutional democracy.

Indeed, constitutionalism demands consistency. Political actors who correctly defend the rights of other politicians to challenge adverse findings, criminal convictions or parliamentary processes through appeals and reviews cannot plausibly deny those same rights to a sitting president merely because it is politically expedient to do so.

This principle applies equally to all, including EFF leader Julius Malema, who was recently convicted of firearm-related offences, or any other individual found guilty of criminal conduct.

They too retain full constitutional protections, including the right to appeal judgements and seek judicial review. The Constitution does not create different categories of legal entitlement based on ideology, popularity or political affiliation.

The proper functioning of constitutional democracy requires both meaningful accountability and scrupulous procedural fairness.

There is therefore no contradiction between supporting the Constitutional Court’s insistence on accountability and recognising Ramaphosa’s entitlement to pursue legal remedies against findings he believes are flawed or unlawful. Both principles are indispensable to constitutional governance.

Importantly, the court itself carefully distinguished between the existence of prima facie evidence warranting investigation and definitive findings of guilt or misconduct. A section 89 process is investigative and political in character; it is not a criminal trial nor a final judicial pronouncement of liability. It is precisely because such processes carry profound political and reputational consequences that judicial scrutiny and procedural fairness remain essential.

Constitutional democracy depends not merely on elections but on the existence of credible accountability mechanisms between elections. Where those mechanisms fail, democratic legitimacy erodes, public trust collapses and cynicism flourishes

This ruling may ultimately have implications far beyond the Phala Phala controversy itself.

It potentially recalibrates the relationship between dominant-party politics and constitutional oversight in SA. Future parliamentary majorities may find it considerably more difficult to use procedural mechanisms to shield presidents from meaningful inquiry where prima facie evidence of misconduct exists.

In that sense, the judgment strengthens not only impeachment procedures but also the broader constitutional culture.

It also sends an important institutional message. Constitutional democracy depends not merely on elections but on the existence of credible accountability mechanisms between elections. Where those mechanisms fail, democratic legitimacy erodes, public trust collapses and cynicism flourishes.

South Africans have witnessed too many instances where institutions appeared paralysed by political calculations at the expense of constitutional principle. This judgment attempts to arrest that institutional decay by reaffirming that constitutional obligations are binding, enforceable and cannot be indefinitely deferred by political majorities.

Whether one supports or opposes president Ramaphosa is ultimately beside the point.

The enduring significance of this ruling lies in the principle it establishes: no president is above constitutional scrutiny, and no parliamentary majority may lawfully extinguish accountability processes merely because they are politically inconvenient.

Equally, however, no citizen — including a president — forfeits the constitutional protections of due process, judicial review and appeal simply because allegations have been made against them.

A mature constitutional democracy must be capable of holding these two principles together simultaneously: robust accountability and scrupulous fairness under the law.

That balance, more than partisan triumphalism, is the true measure of constitutional fidelity.

• Khaas is chairperson of Public Interest SA