The impeachment of President Trump v motions of no confidence in the President of South Africa

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Anton Katz

Human society, and this applies to communities large and small, is ordered in a manner that requires leaders. 

Leaders to regulate, to govern, to protect and direct the future of the community. So, when a four person family goes on a vacation there needs to be a ‘leader’ to decide on what to do and where to go as the holiday progresses. Of course, each person could in theory ‘do their own thing.’ But just imagine if there were no rules of the road, and no lanes existed to regulate which side of the road vehicles must drive on. Chaos would ensue, which is in no-one’s interest. 

There must be a leader (or group of leaders called government) to regulate traffic lanes and general rules of the road. Obvious questions arise as to how is this leader elected or appointed, for how long and in what circumstances must he or she be removed? Now these same ideas and principles apply to larger more complex societies and all manner of decision making. Nation states are formed not only to regulate its members, but also to protect them from outside influence and attacks. Also, communities need to make hard choices on its priorities. Some societies may emphasise education of its children, while others may prioritise caring for the aged or health care. Almost all societies decide who to let join, and who to remove. It’s called immigration and deportation. And they determine what conduct is prohibited, how to police the offending conduct and the consequences for violations.

But what if the leader, the President, Prime Minister, King or Queen, makes ‘bad’ or unwise decisions or indeed acts unlawfully. Every State has rules how to deal with rogue leaders. And those rules differ markedly from state to state. Some states only deal with misconduct and others concern both misconduct and simply unwise decision making. In the United States, the leader, the President, is granted wide ranging powers; he is commander in chief of the armed forces, and he has the power to nominate federal judges, who are appointed for life, amongst other powers. The US President is elected directly by the electorate on the basis of a complicated voting scheme through what is called the Electoral College, which is a body of people representing the different States in the US. There are two parliamentary bodies in the US, the House of Representatives and the Senate. When it is suspected that the President’s conduct has crossed a certain line, the House of Representatives has the authority to impeach the President. Impeachment does not in itself remove the President from office; it is equivalent to an indictment or the laying of charges in criminal law. Impeachment is only the statement of charges against the President. The House of Representatives decides whether to charge (impeach) the President, and if it decides to impeach, the Senate holds a trial to determine whether the President has conducted himself in a manner that warrants his removal from the office of the President. The House decides on a simple majority basis (51%) whether to impeach, whereas for the Senate to uphold the charges and cause removal of the President 67 of the 100 senators must vote affirmatively. Impeachment and removal can only occur when the President has found to have committed treason, bribery or other high Crimes and Misdemeanours. The only penalty the Senate can impose is removal from office and disqualification from future federal office. The impeached and removed President retains all the benefits and privileges of the office.

In South Africa, the Constitution sets out different procedures for, on the one hand misconduct by the President, and on the other a loss of confidence in the President. Significantly, unlike in the US the election of the President is not by way of direct public voting. Voters vote for a party which, through the votes they gain, obtain seats in parliament. And it is parliament who vote for who becomes the President. Now, if parliament decides by a simple majority of 50% that it has no confidence in the President and/or Cabinet it can vote the President and/or Cabinet out of office. There is no absolutely reason or justification required. It is parliament’s power to vote the President out of office because it does not feel comfortable in the manner he is governing the country. The President and Cabinet must resign if a motion of no confidence is passed. The President would be entitled to all benefits for life a retired President receives after resignation pursuant to a no confidence vote. On the other the national assembly could vote by a super majority (two thirds) that the President is to be removed if certain grounds are present. Parliament may resolve that the President has committed a serious violation of the Constitution or the law, or is unable to perform the functions of the office. A forced removal on the ground of a serious violation of the Constitution or the law deprives the person from all benefits of the office and he or she may never serve in any public office. 

Two thoughts come to mind: ‘Sed quis custodiet ipsos custodes?’ is translated as “But who will guard the guards themselves?” In posing that question, the Roman Poet Juvenal was suggesting that wives could not be trusted and that keeping them under guard was no solution because guards could not themselves be trusted. So, as many persons around the world have seen over the centuries, leaders cannot always be trusted to conduct themselves in a lawful manner, and there obviously need protections against and constraints on the exercise of all public power. Removal/impeachment by the people’s representatives is a partial solution. But on the other hand, in societies where the governors are put together through a coalition of political parties, good governance can be seriously compromised when the coalition starts fraying. Recent examples in South Africa are in cities where it was necessary for the executive mayor to have been elected by more than one party. No one party obtained 50% of the votes. As soon as the partnership in the coalition had pressures put to bear the position of the mayors became tenuous. It was relatively easy for the mayor to be voted out through no confidence motions. That situation is certainly not ideal for stable governance. An ever changing President and/or Cabinet is not desirable. So, ultimately there needs to be a fine balance struck between not making it too easy to remove a President who has been properly elected and making sure that if the President conducts himself unlawfully serious consequences, such as removal from office, will inevitably follow.

To read the Editor’s column for February click here

To read or download the February issue of the Chronicle in PDF click here

To read the most read article of the December/January issue, click here

Portal to the Jewish Community: to see a list of all the Jewish organisations in Cape Town with links to their websites, click here

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