Off With Jacob's (Shower)Head: Mazibuko's Impeachment Threat Analysed

2014-02-20 01:23

In what was widely praised as an excellent speech, rare these days in the Houses of Parliament, Lindiwe Mazibuko boldly claimed that she would move to impeach President Jacob Zuma if he was implicated in any unlawful activity. This claim was made in reference to the ongoing Nkandla scandal that is presently being investigated by Thuli Madonsela, the Public Protector.

Assuming that the report does contain details of unlawfulness, which many newspapers and politicians have concluded based on their own investigations, it stands to reason that Zuma and his Cabinet would never want the report to see the light of day. The prospect of impeachment is yet another aspect to the gargantuan tussle being fought by Zuma and Mazibuko as both the ANC and the DA seek to score maximum advantage of this debacle.

Should the report confirm what we all suspect, is Mazibuko’s threat a credible one?

The Constitution is instructive. There are two ways through which Parliament may get rid of an incumbent President.

Section 89 speaks of removal of a President for largely legal grounds (i.e. serious violation of the Constitution or rule of law; serious misconduct or the inability to perform the duties of office) and is colloquially referred to as ‘impeachment’. Technically, South Africa has no separate ‘impeachment’ process like they do in the United States.

Section 102 speaks of removing the President and/or his Cabinet for political grounds. This is the motion of no confidence that is the traditional sword Parliament hangs over a member of the Executive’s head. The sword should, in theory at least, fall on them when the House believes they are no longer suitable to conduct themselves as the office which they hold requires them to.

There are two important distinctions to bear in mind:

First, section 89 is of a higher standard. It has a legal threshold which must be met in order for impeachment proceedings to be met. The grounds for removal are specific and have particular meaning. Any action launched to remove a President that does not meet that standard is prima facie illegal and even if Parliament ‘impeached’ the President, it could have no effect. Section 102 is far less restrictive as ‘confidence’ is a broadly defined political concept which encompasses most things.

Secondly, whereas a President removed in terms of section 102 loses no (financial and status) benefits after being removed, i.e. they are still treated and paid as being a former head of state, any person removed in terms of section 89 loses all those privileges. In fact, the person does not only lose any benefit they may have otherwise been entitled to, they are also barred from ever holding public office again.

So we can take away from this that impeachment is serious.

But there is a problem with both of these procedures. Namely, they both require a parliamentary majority in order to be effective: section 102 requires a simple majority whereas section 89 requires two-thirds. Based on numbers alone (as they stand at present and as they are assumed to be after 2014, even when being generous to the DA) Zuma seems safe. The ANC will either possibly control a sufficient number of votes on the floor to protect Zuma from being impeached or will hold a majority that will shoot down any attempt to remove him.

The calculus for this is simple: (a) if the ANC moves against Zuma, it will be tantamount to admitting defeat publicly – especially after denying that there was any wrongdoing in the first place; and (b) far too many at the top of the ANC owe their rise to Zuma and will fall with him – they thus owe him their loyalty and it will be mad for them to let him fall (self-interest in this case lies in protecting Zuma). Even faced with cold hard evidence, as they have been in the past, the ANC cannot be trusted to act in the national interest for a myriad of reasons.

Is Mazibuko’s threat worthy of paying attention to though? I believe it to be so. Even if the vote is ultimately successful, it is clever wedge politics on her part: (a) she unites the Opposition and strengthens her claim to being the DA leader in waiting; (b) she forces the ANC to choose embarrassment and humiliation with Zuma or an easier ride without him; (c) she changes the ANC’s calculus of whether they would want to keep Zuma around for much longer: if they do, they face real problems in the long run, if they don’t they concede what the DA has being saying all along – he is inept and is out of his depth trying to run our country.

The ANC’s attempt to put this down to simple electioneering was poor at best. While Mazibuko’s attack may in part be motivated by the looming elections, she and the rest of the country have been moved by Nkandla in ways previously unknown. Even ANC supporters that detest the DA can agree that Zuma is the party’s single greatest threat to its previous lock on power and that for as long as he remains Number 1 the worse this situation will be. Mazibuko’s move was particularly clever because she reminded the ANC that even if they disregarded her, they could not disregard the thousands of people who booed Zuma into ignominy at Nelson Mandela’s Memorial.

While Mazibuko may not have the numbers in Parliament to support her threat, she has access to millions of voters that do. The DA’s 2009 ‘Stop Zuma’ campaign seemed highly personalised and premature. If anything, this time around the party can roll out the same campaign and posters and, much to the ANC’s displeasure, the voters are more inclined to listen. Mazibuko’s strategic move has done one thing brilliantly: it has put even more pressure on a beleaguered Zuma whose colleagues must all be furiously wondering how much longer they can go on protecting him – and at what cost.

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