Why Parliament won't remove President Zuma

2017-04-09 23:10

In what has become an annual pattern, South Africa can brace itself for another (failed) attempt by opposition parties to remove President Zuma through a vote of no confidence in the National Assembly (NA).

I should point out that was follows is not to be construed as my support for the President but a practical consideration of the plan by the opposition parties. The Speaker of Parliament has confirmed that there will be a motion of no confidence against the President tabled before the House on the 18th of April. This motion is pursuant to s102 of the Constitution.

There are only two ways in which the National Assembly can remove the President. One is done in terms of s89 of the Constitution which is South Africa’s equivalent of the impeachment process.  There is no mention of an impeachment in the Constitution per se but this is the provision that matches that of other countries. It is a clause used for abuse of office and other serious forms of misconduct the President may commit. In terms of the section, at least two thirds of the members of the NA must adopt the resolution. In addition, The NA may only use the provision in one of three instances:

  • Serious violation of the Constitution or the Law
  • Serious misconduct or
  • Inability to perform functions of the office

Apart from the numbers game that would stifle the use of this specific provision, there are hurdles in proving the first two situations. One of the hurdles would be that a final determination of unconstitutional conduct by the President must be made by the Constitutional Court as per s 167 of the Constitution. Arguably, Parliament would probably not be able to conclude that there was serious violation of the Constitution without approaching the Con Court. If the NA fails to observe this and proceeds to kick the President out, it is possible that the President can challenge the legitimacy of the vote on the basis that the finding used to oust him was contrary to the Constitution.  We don’t know for sure how this provision will work out since we have never used it to remove a President.

It's also important to note that with this specific provision, one cannot get rid of the President for political reasons that do not fall within the three categories listed. This is an objective fault-based process with a rigorous strand to it. This is probably why it is not a favourite for political parties. With the current ANC majority and the 2/3 majority required by the section, there is no doubt that this is nothing more than pie in the sky.

The second way to oust the President is set out in s 102 of the Constitution. With this provision, two things are possible. The NA may pass a vote of no confidence in just the ministers by a supporting vote of a simple majority. If this is the case, the President must reconstitute the cabinet but he remains President. The second part of s 102 allows for the President to be removed again by a simple majority but he leaves office together with his 35 ministers and 37 deputy ministers. So, this vote will kick 73 people out of office effectively – a key consideration the opposition parties have forgotten.

The beauty of this provision is that it does not require a 2/3 majority vote to pass and it can be based on any reason including politically motivated ones. It would be easy to remove the President using this provision. So, what’s the problem? Three stumbling blocks exist for the opposition parties:

  • The parliamentary caucus and electoral system
  • The other ‘casualties of war’- the 72 individuals who will lose their jobs together with the President
  • The secret ballot voting system

The electoral system

In terms of the electoral system, political parties determine who sits in the National Assembly. In simple words, parties have the power to deploy members to the NA but they also have the power to recall members from Parliament. Consequently, when the party takes a position, all its members in the NA are expected to vote along those lines and if anyone violates that position the party can bring charges against the individual or recall them from the NA in terms of s 47 (3) (c) of the Constitution. The ANC leadership has already taken a position that it will require all its members to vote against the motion and even if one or two individuals go against the directive, we can be rest assured that ANC MPs will vote with the consequences of their actions in mind

The other casualties of war

Another decisive factor is the fact that the cabinet ministers and their deputies will vote with their jobs in mind since they will be directly affected by this vote. They may not agree with the President but the fact that they too will lose their comfortable lifestyle when they get kicked out with the President, will persuade them to vote against the motion. Effectively the opposition is asking for 72 individuals to give up their lifestyles and salaries along with the President and that’s not likely to happen.

The Parliamentary Voting System

In terms of existing rules, the vote will be an open vote and there won’t be a secret ballot vote. This means the ANC will know who has decided to go against the directive and is likely to take action against the said MP. With this system in place, it is highly unlikely that there will be any defectors who will vote in favour of the opposition motion.

Based on the reasons above, it seems very pointless for opposition parties to continue to push for motions like this as frequently as they have. The sitting on the 18th will be for the sole purpose of the motion at the cost of the taxpayers. It seems to me that this sitting is an exercise in wasteful expenditure because the end result is obvious. I am not saying the opposition parties should do nothing about the President but they should re-evaluate their strategies and avoid repeating things that they know (or ought to know) will not succeed. To remove the President lawfully, the opposition parties need to know how to play the game and play it well but until they do, President Zuma won’t be removed by a parliamentary vote.

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