By Anton Katz
Every country, state, province, city, company, sports club, religious community has a mechanism for removing unpopular or rogue leaders.
The Constitution, 1996 contains three methods to replace a person as President. The three methods do not include the death of the incumbent. Resignation is 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. If a President does not complete a term, the person who fills the vacancy until the next election is not regarded as having served a term.
The second is what is called a motion of no confidence, and the third is removal, known as impeachment.
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 to pass a majority of all the members of the NA must support it. That is, the votes of at least 201 members of the 400 member National Assembly are required. An absent member or a vote to abstain is effectively a vote against the motion. 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 keep the President accountable to the Assembly which elects her or him.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 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 a hefty pension, and may serve in public office in the future. Impeachment may and usually does have a different result. It requires 2/3 of the 400 NA members (that is 267 members) 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. Second, if he commits serious misconduct. Third, 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. 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, and if the NA fail to elect a new president within 30 days, 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, bearing in mind the intense ZumaMustFall campaign and the historic question of the legal basis of President Thabo Mbeki vacating the office of the President. He was ‘recalled’ by the majority party, and simply resigned. Was that lawful or did it require the members of the NA to vote him out of office? Were the NA to vote President Jacob Zuma out of office, who will be his successor, which must be determined by a vote via secret ballot in the NA within 30 days of the end of President Zuma’s presidency? These are interesting legal and political questions facing the country.
Anton Katz SC is a practicing advocate at the Cape Bar and has been a member of the United Nations Human Rights Council Working Group on Mercenaries since 2011.