Pierre de Vos, Constitutionally Speaking – 13 February 2018
The National Executive Committee (NEC) of the African National Congress (ANC) announced on Tuesday that it had decided to ask President Jacob Zuma to resign (they quaintly called this a “recall”). However, its Secretary General, Ace Magashule, claimed that they did not give the President any deadline to resign and suggested there was still room to negotiate the timing of his resignation. He also – confusingly and somewhat contradictorily – indicated that the President will “respond” on Wednesday to the request to resign. At the time of writing there is no clarity on whether President Zuma will heed this request by the NEC. The question is: What happens if he refuses to go?
The President of South Africa is elected (and can only be removed by) the members of the democratically elected National Assembly (NA), serving all the people of South Africa. President Jacob Zuma is no different.
He was not legally elected as President of South Africa by the ANC NEC. He can therefore also not legally be removed as President of the country by the ANC NEC. However, usually ANC MPs in the NA are likely to follow the guidance of the extra-parliamentary ANC NEC and if instructed to do so, they are likely to support a vote of no confidence in President Zuma.
It is for this reason that it would make sense for Jacob Zuma to resign as President of South Africa in the next day or two, since he has now been asked to do so by the ANC NEC. (The ANC NEC says it “recalled” him, but the NEC has no legal power to recall the President, so I will assume what they meant was that they asked him to resign.)
If President Zuma refuses to resign, the NA will remove him from office through a vote of no confidence (removal through impeachment would be cumbersome and time-consuming, so it is not likely to be on the table). If this happens ANC MPs will be instructed by the NEC to support such a motion of no confidence (and most or all ANC MPs are likely to obey the instruction), and he will be removed. If some ANC MPs decide to vote against such a motion, the President could still be removed if a large enough number of ANC MPs support such a motion, along with the majority of opposition MPs.
At present, there is already a motion of no confidence before the NA. This motion was submitted by the Economic Freedom Fighters (EFF) and is scheduled to be considered on 22 February.
As I noted before, a vote of no confidence is a political decision taken by MPs, a decision based on whether they have lost political confidence in the President and his cabinet. This means it is not plausible to approach a court to argue that there was no rational reason to remove the President from office through a vote of no confidence.
MPs could support a vote of no confidence in the President for serious reasons (such as that the President is facing several charges of corruption, fraud and money laundering) or for frivolous reasons (such as that they dislike the President’s speaking style, his clothes, his laugh, or for any other reason).
Motions of no confidence are regulated by NA Rule 129, which gives effect to section 102 of the Constitution. Rule 129(2) states that:
The Speaker must accord such motion of no confidence due priority and before scheduling it must consult with the Leader of Government Business and the Chief Whip.
Nothing stops the Speaker from rescheduling the motion of no confidence already scheduled for 22 February, so the Speaker is entitled to bring the date for the EFF motion forward to sometime this week, if she so wishes – as long as she consults as required.
The Speaker also has some power to request amendments to a motion of no confidence if the motion does not comply with any relevant law or any relevant rules and orders of the NA. She is then legally required to “ensure that the motion of no confidence is scheduled, debated and voted on within a reasonable period of time given the programme of the [NA]”.
If President Zuma refuses to resign immediately, the Speaker could therefore reschedule the EFF motion of no confidence for later this week. However, for reasons that a non-politician like myself find difficult to understand, it is said that the ANC MPs would be reluctant to support a motion of no confidence tabled by an opposition party and (if it came to that) that it would rather table its own motion of no confidence in President Zuma.
In terms of NA Rule 120 a motion may not be tabled for discussion in the NA “which is the same in substance as a matter that has been discussed in it during the same annual session”. If this section had applied to motions of no confidence, it would have made it impossible for the ANC to table its own motion.
But NA Rule 129(8) explicitly states that this rule does not apply to motions of no confidence. This means nothing prevents the ANC from also tabling a motion of no confidence in President Zuma.
The problem is that it would hardly be rational for the Speaker to schedule the ANC motion for discussion before the EFF motion as the EFF motion was tabled first. Any impartial presiding officer would therefore schedule the EFF motion to be heard first. If the Speaker schedules the ANC motion first, she would be making decisions based on party interests and would not be acting in an impartial manner as required.
Recall that last year the Constitutional Court held in United Democratic Movement v Speaker of the National Assembly and Others that:
The Speaker is chosen from amongst Members of the National Assembly. That gives rise to the same responsibility to balance party interests with those of the people. It is as difficult and onerous a dual responsibility as it is for Members, perhaps even more so, given the independence and impartiality the position requires. But Parliament’s efficacy in its constitutional oversight of the Executive vitally depends on the Speaker’s proper exercise of this enormous responsibility. The Speaker must thus ensure that his or her decision strengthens that particular tenet of our democracy and does not undermine it.
It would therefore not be in line with the Constitutional Court jurisprudence for the Speaker to schedule the ANC motion now before the EFF notion has been considered. Unless the EFF withdraws its motion and allows the Speaker to schedule an ANC motion, the ANC would then have to decide whether to support the EFF motion. If it did not support such a motion the President might survive until such time that an ANC motion could be considered. This would be rather odd.
If the NA passes a motion of no confidence in President Zuma and his cabinet, the President and the entire cabinet must resign. They have no choice in the matter. A refusal to resign would result in a full blown constitutional crisis as it would, in effect, mean the President is unconstitutionally holding on to power. A refusal to resign would mean the President is attempting to suspend the Constitution and this would be akin to an attempted coup d’état. This scenario is therefore unthinkable – at least to me.
Once the President and cabinet resigns after a motion of no confidence, the Speaker serves as Acting President until such time as the Chief Justice has scheduled a special meeting of the NA to elect a new President from among the members of the NA. (If the President resigns voluntarily, the Deputy President serves as Acting President until a new President is elected.) The election of a new President could happen within a few hours, or a few days, but must be done within 30 days from the moment the vacancy in the presidency arose.
Any member op the NA can be nominated as a candidate for election as President – as long as he or she was nominated by at least two other MPs. If more than one candidate is nominated, the person who receives a majority of the votes cast will be elected President. If no candidate receives a majority of the votes cast (say 4 people are nominated and the vote is split), the candidate who receives the lowest number of votes must be eliminated and a further vote taken until one candidate achieves a majority.
In theory, it would therefore be possible for different ANC factions to nominate different candidates for President, so both Cyril Ramaphosa and Nkosazana Dlamini-Zuma could theoretically be nominated as candidates for President. But this is unlikely because ANC MPs would have to be brave indeed to defy the party leadership by nominating someone for President who is not the ANC NEC’s preferred candidate. Such MPs are unlikely to retain their seats as MPs in the long term.
If Cyril Ramaphosa is elected as President, the term he serves until the next election will not count as one of his two terms permitted by the Constitution. This is because section 88(2) of the Constitution states that:
No person may hold office as President for more than two terms, but when a person is elected to fill a vacancy in the office of President, the period between that election and the next election of a President is not regarded as a term.
Once elected, the new President will then be able to appoint a Deputy President and other cabinet members.
As I write this, I have no idea what will happen. All eyes are on President Zuma to see what he will do. What is clear is that it would make matters much easier for the ANC if he resigns. Removing the President with a vote of no confidence will be politically messy. No wonder, the ANC leadership is doing everything it can to try and avoid this possibility.