The world is changing fast and to keep up you need local knowledge with global context.
CAPE TOWN — According to advocate Anton Katz, SC, only parliament has the Constitutional power to remove President Zuma and replace him with someone else – the ANC cannot simply ‘recall’ him, nor can he just resign. Which seems to give Zuma legal wriggle room to once again do the ‘No-Confidence Vote’ shimmy, or to risk an impeachment vote. The first is unlikely to see him continue dodging bullets, given the shift in party-power to Ramaphosa. A victory here would give Ramaphosa a shoe-in to Tuynhuys with a hand-picked cabinet as the old one is swept away and a new president (him) voted in. Handily, Zuma would retain all his benefits. Sounds almost like a deal. Not so with impeachment. The required two-thirds majority impeachment vote would see Zuma go but his cabinet remains. Impeachment grounds, all of which exist, are very specific – and he gets zilch benefits. This piece was first published in the Daily Maverick. – Chris Bateman
By Anton Katz*
The process of the lawfulness of the removal and replacement of the President are determined by the Constitution, the supreme law. The Constitution contains three, and only three, methods to replace a person as President. Significantly, resignation and/or recall are not mentioned at all.
The first is the two term limit. A term consists of the life of the national assembly, which is five years unless it is dissolved at an earlier point. No person may hold office as President for more than two terms.
The second is what is called a motion of no confidence.
The third is removal, commonly known as impeachment.
Different processes and consequences apply to no confidence and impeachment motions.
Any one of the 400 members of the national assembly may request the Speaker to place a motion of no confidence or impeachment for debate and vote.
For a motion of no confidence in the President to pass a majority of members of the National Assembly must support it. If the motion succeeds the President and all members of the Cabinet, including the Deputy President must resign.
The Constitutional Court has stated that a motion of no confidence in the President is a vital tool to advance South Africa’s democratic hygiene. It held the Assembly “is elected to represent the people and to ensure government by the people under the Constitution.” A no confidence motion affords the Assembly a vital power and duty to scrutinise and oversee executive action. The ever-present possibility of a motion of no confidence against the President and the Cabinet is meant to hold the President accountable to the Assembly which elects her or him. In effect, the people through their elected representatives in the Assembly would end the mandate they bestowed on the President.
The right that flows from the power of such a motion is central to the deliberative, multiparty democracy envisioned in the Constitution. It implicates the values of democracy, transparency, accountability and openness. A motion of this kind is perhaps the most important mechanism that may be employed by Parliament to hold the executive to account, and to interrogate executive performance, the Court held.
In making these comments the Constitutional Court noted that it is the Assembly that elects the President from among its members. In South Africa, unlike in some countries, the President is not elected by the citizens directly, but through the 400 members of the Assembly. Once the President is elected he ceases to be a member of the NA.
Two consequences of a successful motion are of interest. First, unlike a successful impeachment process, the President retains all the benefits and rights of a former President, such as the hefty pension he or she would receive, and may serve in public office in the future. Impeachment may and usually does have a different result. Impeachment requires two thirds of the members of the NA to support a vote. This may only occur in three situations:
First, if he or she commits a serious violation of the Constitution or the law.
Secondly, if he commits serious misconduct.
Thirdly, if he is unable to perform the functions of the office.
Removal from office on the first two grounds of impeachment results in the loss of all benefits of the President’s office. In an impeachment situation it is only the President who is removed, not the entire Cabinet.
The second feature relates to who takes over as Acting President during the President’s temporary absence or on the permanent vacancy of the office, either because of a successful no confidence motion or removal (impeachment). After removal the Deputy President takes over and performs the function of the President. If there is no Deputy President, or he or she is not available, it will next be a Minister designated by the President, then a Minister designated by the other members of the Cabinet, and in the alternative, the Speaker, until the NA designates one of its other members.
So, on impeachment the Deputy President becomes Acting President, whereas after a successful no confidence vote it will be the Speaker because the entire Cabinet, including the Deputy President, must resign. The NA must elect one of its members to fill the vacancy, at a time and date determined by the Chief Justice; but if the NA fail to elect a new President within 30 days after the vacancy occurred, the Acting President must dissolve the NA and a fresh general election must be held.
The elaborate and detailed provisions dealing with the process and consequences of the removal of a President have become not only of academic interest, but of vital practical significance, now that the ANC has once again a president who is not the President of South Africa. The historic question of the legal basis of President Thabo Mbeki vacating the office of the President is of interest.
He was “recalled” by the majority party, and simply resigned. Was that lawful or did it require the members of the NA to pass a resolution? Were the NA to vote President Jacob Zuma out of office, who acts in his place is determined by which legal process was employed. But what surely cannot be lawful is for a political party to simply “recall” the President.
This may be of crucial importance in the future. There is the obvious possibility of coalition government in the future. Let’s say three parties each win 30 percent of the popular vote; and the NA as part of a political deal elects a person from a small party which won 10 percent of the vote. Could that small party on its own recall the President? I doubt the Constitution permits such a scenario. The Constitution certainly does not do so explicitly. Indeed there is no constitutional concept as “recall” or “resignation” as far as the President is concerned. If Jacob Zuma one day decided he wanted to retire to Nkandla could he simply make an appearance on national television and announce his “retirement” as President. Again I doubt it. It seems the Constitution has given both the power to elect the President and the power to remove and replace the President to the National Assembly. Even if the people of South Africa conclude that it is time for Jacob Zuma to leave the Union Buildings it is necessary that the removal be exacted in a lawful and constitutional process. The rule of law and a society based on constitutional values demands no less.
- Anton Katz is a practicing advocate (SC) at the Bar in Cape Town. He is a member of the United Nations Working Human Rights Council’s Group on mercenaries.
Zuma’s reluctance to leave office is offering sound lessons in democracy
By Roger Southall*
His determination to stay put is being widely condemned by a range of South African voices. But there’s a case to be made that his reluctance is doing South Africans a favour as it is forcing them to clarify various constitutional and political issues. Most obviously, albeit inadvertently, he is asserting the supremacy of parliament over the authority of the party.
Because the top leadership structures of the ANC are divided – including the top six where it seems that only four want him to leave office immediately – Zuma is exploiting what wriggle-room he has left. He’s effectively saying that the forces ranged against him aren’t convincing enough, and that he still has considerable support within the party.
In other words, he is daring the ANC leadership to put a motion of no confidence to the National Assembly and to use the party’s majority to vote him out of office.
His gamble is this: he can survive such a motion if it is put by an opposition party because to support an opposition motion would prove hugely embarrassing to the ANC. The speaker of parliament has already put down a motion of no confidence tabled by the opposition party, the Economic Freedom Fighters (EFF), for discussion after the budget speech on February 22.
For the ANC to put down its own motion, and then try to ensure it received a majority, would all take time, time, time. And that’s what Zuma wants so that he can rally his supporters, convince waverers that he still has some clout, and maximise his bargaining power.
If the party’s new president Cyril Ramaphosa could manage to secure a clear majority of the ANC’s national executive committee (it’s highest decision making body in between elective conferences) asking Zuma to resign, then it is conceivable that Zuma might accede to leave office. But more likely, he would continue to force the ANC to resort to parliament.
And even if he were to step down at the very last moment, his behaviour is reminding South Africans where, ultimately, the power to elect and depose a president lies, and that is, with parliament.
Zuma’s nine lives
Zuma has already survived umpteen votes of no confidence brought about by opposition parties. Not enough ANC MPs have ever voted with the opposition to carry the motion.
In the last event, a small minority of ANC MPs used the cover provided by a secret ballot to vote in favour of the motion (or to abstain). But the large majority voted for Zuma to stay in office. At the time, they could use the excuse that the ANC’s national conference was coming up and that it was the appropriate place for the leadership issue to be decided. But now that has passed, Zuma’s favoured candidate has lost, Ramaphosa has triumphed, and he now wants the President to resign. What excuse would the ANC MPs have for not supporting the opposition motion this time round?
The justification that they cannot be expected to vote for a motion put by the EFF is morally and politically threadbare. What is Ramaphosa going to do? Argue that internal ANC unity matters more than the needs of the country? What would the popular reaction be to the ANC in effect voting for Zuma to stay in office?
Frankly, the ANC’s cover would be blown.
The role of MPs
Beyond the immediate issue of Zuma, South Africa’s political parties need to debate what they expect of MPs. There was much talk prior to the previous vote of no confidence for the need for ANC MPs to display their ‘integrity’, a code word for them to break party lines and vote for the opposition. In other words, it was suggested that MPs should resist acting like party cyphers. Yet, in the ANC’s eyes, its MPs are ‘deployed’ to parliament, and have to obey party dictates. Little or no room is left to individual conscience.
This has meant that, since 1994, MPs have largely been kept in party line because of the threat of being disciplined by their parties. The ultimate threat is their dismissal from the party which in turn means being kicked out of parliament. This follows largely from South Africa’s adoption of a party list proportional representation system. In contrast, in constituency based electoral systems, for instance in the UK, MPs are accountable downwards to voters in their constituencies as well as upward to their party bosses in parliament.Historically the tradition in parliamentary systems has been that certain issues, often relating to human rights, are resolved by party whips allowing MPs to vote according to their individual consciences. In South Africa, political parties have largely been spared potential conflicts over divisive issues such as the death penalty because they’ve been resolved by the Constitutional Court.
This means that MPs in South Africa are unlikely to put the interests of the people (the voters) above those of their party. This issue is not satisfactorily resolved, as the ANC likes to say it is, by voters having given the majority party most votes at the previous election.
Alas, political life is more complicated than that.
Voters want accountability as well as representation. While most South Africans understand the need for proportionate representation of political parties in parliament, there is nevertheless a substantial hankering for MP’s to be more accountable to the voters.
There is a widespread argument that a change to a mixed member proportional representation scheme would square this particular circle. Some MPs would be elected from multi-member constituencies (with from three to seven MPs as recommended by the Van Zyl Slabbert Commission on the electoral system) while others would be elected from party lists to bring about overall proportionality. This would mean that South African could be able to identify particular constituency MPs who had particular responsibilities to represent them.
In turn, this would mean that MPs would have to consider more than the interests of party bosses when casting their votes.
It is certainly an attractive idea, and is one which needs a proper airing. Whether practice would match electoral system theory is another matter. For all their numerous faults political parties can’t be dispensed with; nor can they be expected to operate without exerting discipline on their representatives in parliament.
At the same time, citizens want to be represented by individuals who are more than party donkeys.
South Africans need to debate in what sort of circumstances they expect or make allowance for MPs to deviate from the party line. But they need to recognise that there is an inherent ambiguity in the role of MPs: at times, they are faced by conflicting obligations, simultaneously to party versus people. Accountability demands that they justify their decisions.
Ironically, Zuma is banking on that ambiguity, while hoping that ANC MPs duck the need for accountability.