SONGEZO ZIBI | Why removing Thoko Didiza would create a dangerous constitutional precedent

This week MPs were asked by the EFF to remove the speaker of parliament, Thoko Didiza. This is because she committed the sin of not opposing the president’s High Court review application to set aside the independent panel report that recommended that impeachment proceedings begin.

Didiza initiated the formation of the impeachment committee after the Constitutional Court judgement that set aside a rule of parliament that required a vote on the panel’s report.

From that day on, all matters pertaining to impeachment must be handled by the committee only. This includes responding to any legal action launched against parliament by any witness, including the president.

Involving Didiza in the current review court proceedings risks creating a constitutional crisis in the future. If we accept, as we should, that legal interventions must be informed by an independent and proper application of the mind, then there is the possibility that Didiza or any future speaker may form a view that contradicts the committee’s position.

In that case an untenable situation will occur where the speaker, a member of the same parliament wholly represented by the committee, shows up in court to oppose her own committee.

Conversely, the speaker is not supposed to take instructions from the committee either. If the speaker is expected to litigate, then she must be able to take an independent decision; otherwise, there is no need for her to get involved at all.

She is not a subordinate of the committee, and her willingness to take instructions from the committee would be far from being the marker of impartiality some are complaining about. To the contrary, it would betray a worrying inability to stay above the fray so she can make interventions that keep the process within the boundaries of law and rules of parliament.

There is a habit in South African politics that treats constitutional disputes on an individual basis without considering carefully the implications for the future.

The same can be said to be true here, where a history of previous speakers of parliament protecting a sitting president causes genuine anxiety when enhanced oversight must be undertaken.

But the mere existence of anxiety is no reason to create precedents that may in the future create bigger problems if the same principle were to be followed.

The principle that would have been created by a successful motion against Didiza’s tenure is that the speaker “must” always join litigation in which parliament is represented by a committee.

This would either be on the basis that a speaker must take his or her cue from the committee and not apply their own judgement at all or exercise their independence, which may result in the speaker holding an opposing view.

Additionally, the mere approaching of the courts by the president for relief can never constitute an attack on parliament. Yet such a view seems to have taken root in some quarters.

While the committee is constitutionally empowered to take a view to reject the president’s assertions, in a law-abiding society his only remedy is to approach the courts. It may be irritating, but it remains the only constitutional step allowable.