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Recent events in the political arena have left many South Africans wondering what can be done to legitimately remove Jacob Zuma from his position as President of South Africa. Below is an overview of the options permitted by the Constitution of South Africa provided certain conditions are met.
Before I launch into these options, it is necessary to explain why our President’s removal is considered necessary by some members of civil society who are at the forefront of the ‘Zuma must Fall’ movement. Not only has a court ruled that the 783 corruption charges against Jacob Zuma should be reinstated, but the Constitutional Court found last year that the President breached the Constitution when he failed to implement the findings of the Public Protector’s Nkandla report. Jacob Zuma has also failed to pay back R7,8 million out of the R 246 million of tax payer money that was used to build non-security features at his Nkandla homestead. This is R7,8 million of YOUR money which could have been used to provide YOU with a better education, better housing and better healthcare. Jacob Zuma’s blatant disregard for the wellbeing of citizens is also apparent in his disastrous decision to keep our incompetent Minister of Social Development whose irresponsible actions could have left approximately 17 million people without social grants. The State Capture report is further evidence of our President’s disregard for our Country and its citizens. The report shows how our Country is being run, not by our President, but by a wealthy family in accordance with their business interests. These decisions are all to the absolute detriment of accountable public resource management, governance and – ultimately- to the effective delivery of public services.
Apart from the President taking a decision to resign from his post, the Constitution allows for the impeachment of the President (in terms of s89) where the President has; seriously violated the Constitution or the law; behaved in a way which constitutes serious misconduct, or where the President is found to be unable to “perform the functions of office”. In such circumstances, the National Assembly, can vote for the President’s impeachment, provided two thirds of its members support such a resolution. A significant consequence of this avenue of ‘removal’ is that the President will not be entitled to receive the benefits afforded to him by virtue of being the President, and he is also prevented from holding public office in the future.
In terms of s102(2) of the Constitution, a ‘motion of no confidence’ can be brought against the President. It is this option which has increasingly gained traction in recent years. In order for the public to get to grips with this avenue and to understand why the previous 7 motions of no confidence have been unsuccessful, it is necessary to explain the intricacies around this issue.
Section 102(2) of the Constitution, states that if a simple majority of the National Assembly votes in favour of a motion of no confidence in the President, the President along with his Cabinet and Deputy Ministers must resign. This process seems simple enough, however, there are many underlying factors which influence the way members of the National Assembly vote.
One of the underlying factors is that members of parliament (MPs) within the majority party (the African National Congress (ANC)) may lose their seats in the National Assembly if they vote in favour of a motion of no confidence in their current President. South Africa’s electoral system consists of proportional representation informed by a party list system. While MP’s are representatives of their constituencies, recent history has shown repeatedly that loyalty to their political bosses remains their guiding priority, especially where their oversight actions may result in action against them by their superiors. This latter point has been reiterated by the Premier of Mpumalanga who recently warned that ANC MPs will be removed if they vote in favour of a motion of no confidence. With this in mind, it is understandable that a considerable number of MPs are reluctant to vote in favour of such a motion as it could affect their own political livelihood.
Of course, a solution to this problem would be to conduct the voting on a motion of no confidence using a secret ballot which would conceal which MP’s voted for and against the motion. Currently, there is confusion surrounding the use of a secret ballot in this regard.
Rule 103 of the 9th Edition of the National Assembly Rules directs that decisions are to be made using an electronic voting system if the chamber in which the decision is taken is equipped with this type of technology. Furthermore, Rule 104 states that, where electronic voting is not possible, MPs must vote manually. In both scenarios, the identity and the way in which the votes were cast are public knowledge. The only motion which specifically requires a secret ballot is where the National Assembly is electing the President and the name of more than one person has been put forward for this position.
In 2015, an application was brought in the Western Cape High Court to ask, inter alia, that the Court hand down an order allowing for a vote of no confidence to be exercised using a secret ballot. In this case, the Court held that s57 of the Constitution directs that rules and regulations of the National Assembly are to be determined by the National Assembly itself. Furthermore, if the Court were to direct the Speaker of the National Assembly to conduct a vote of no confidence by way of a secret ballot, it would be violating the principle of separation of powers which is sacrosanct in our constitutional democracy. However, the Court specifically stated that “it is within the power and privilege of the National Assembly to amend the Rules of the National Assembly to provide for voting by secret ballot”. It is therefore possible that a vote of no confidence is exercised by way of a secret ballot, but the decision to do so would need to be affirmed by a majority of the National Assembly.
While the Speaker has contended that she does not have a discretion to allow a secret vote during the upcoming motion of no confidence, Constitutional Law expert Professor Pierre de Vos has highlighted that in fact, the Speaker has a discretion to order that a vote be conducted by way of a secret ballot. After declaring that votes must be exercised electronically, rule 103(1) of the National Assembly specifically states that the presiding officer may direct otherwise. Furthermore, rule 104(1) directs that, “where no electronic voting system is in operation, a manual voting system may be used in accordance with a procedure predetermined by the Speaker and directives to be announced by the presiding officer”.
If the Speaker does not direct otherwise, the majority of the National Assembly may decide to vote on the motion of no confidence via a secret ballot in accordance with s57 of the Constitution.
In addition to the above and as Prof. Pierre de Vos explains, members of Parliament must be reminded that in terms of s8(1)(c) of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act; “a person may not… attempt to compel a member to declare himself or herself in favour of or against anything pending before or proposed or expected to be submitted to Parliament or a House or committee”. This significant provision supports the view that MPs should (a) have the right to vote according to their consciences and beliefs rather than according to the dominant views of their political bosses and (b) that MPs should not be subjected to intimidation and compulsion in the lead up to and whilst exercising their constitutional obligations.
The United Democratic Movement (UDM) has filed papers at the Constitutional Court asking that a secret ballot occur during the upcoming vote of no confidence in President Jacob Zuma. Yet again the highest court in South Africa is being called upon to adjudicate (at the expense of the taxpayer) the extent to which MPs and the Executive should be held accountable for their decisions and actions. Having said that, the judgment will at least provide us with much more clarity on the issue of the use of secret ballots.
By: Nicola Sülter
 Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others  ZACC 11 para 36.
 S89(1) of the Constitution of the Republic of South Africa.
 S89(2) of the Constitution of the Republic of South Africa.
 S102(2) of the Constitution of the Republic of South Africa.
 Schedule 3, section 6 of the Constitution of South Africa.
 2016 (1) SA 534 (WCC) at 5.
 2016 (1) SA 534 (WCC).
 2016 (1) SA 534 (WCC).
 2016 (1) SA 534 (WCC) at 123.
 S53(1)(c) of the Constitution of South Africa.
 R104(1) of the Rules of the National Assembly, 9th ed.
 S57 of the Constitution of the Republic of South Africa.
 Act 4 of 2004.
Read all the latest news in the first PSAM newsletter of 2017. The newsletter offers research by partner organisation PACT Zimbabwe, opinion pieces, and profiles some of our work in 2017. Do contact us with any comments, suggestions and other forms of feedback.
Late last night (30 March 2017), South Africa’s embattled President, Jacob Zuma announced the reshuffling of his Cabinet and emphasised that it would “improve efficiency and effectiveness”. If only this reasoning was true, especially within key Cabinet positions affected by his decision.
On the contrary, the retention of Ministers who have displayed incompetence and an inability to adequately fulfil their constitutional mandate should raise serious questions around the veracity of the President’s reasoning in this regard. Unfortunately the President has increasingly illustrated that he has a disregard for sound governance and the maintenance of accountable and ethical leadership within the public service.
The appointment of Minister Faith Muthambi into the Public Service and Administration portfolio is one such illustration, while the retention of Minister Bathabile Dlamini despite her severe failure to effectively and efficiently lead the Department of Social Development is yet another. The removal of Pravin Gordhan and his Deputy, Mcebisi Jonas is perhaps the most graphic illustration of the President’s unwillingness to protect and promote moral, ethical and competent leadership within his Cabinet.
These events leave the South African public with little reason to have confidence that this reshuffled Cabinet can bring about much needed social and economic transformation, especially given the varied and severe allegations against its President and certain of his close allies.
The Public Service Accountability Monitor (PSAM) joins the growing number of voices in South Africa that refuse to accept weak accountability by those who hold public office. The 2016 local government elections sent out a clear message to such leaders. We stand against the maligning of this country’s democratic institutions. How much longer will the majority of Parliamentarians continue to be complicit in this erosion of our democracy?
In the 2017 Budget Speech, Minister Gordhan outlined that national transformation should entail ensuring that we “strengthen democracy, and entrench open, transparent governance and the rule of law”.
Now is the time for vigilance, for increased citizen activism and engagement with Ministers and those who should serve the public good. Don’t be an observer, expect more, demand more of those in leadership and who took an oath to uphold this country’s Constitution.
Parliament watch ahead of PSAM
Increased securitisation of Parliament hampers accountability, according to Parliament Watch
Better accountability in South Africa’s decision making structures, along with better oversight over service delivery and public spending, is key to
proper service delivery. Two days before the official opening of Parliament, a grouping of civil society organisations gathered to scrutinise the state of South Africa’s legislatures and the effectiveness of Parliament and parliamentary committees as a tool for oversight, openness and accountability.
Parliament Watch is a collective of nine independent civil society organisations working towards the advancement of social justice, the realisation of human rights, and strong constitutional democracy in South Africa.
“The legislatures’ duties to oversee effective service delivery and advance social justice and transformation in South Africa are crucial,” said Zukiswa Kota of the Public Service Accountability Monitor.
“Enhanced accountability and improved oversight over service delivery and public spending can impact positively on the performance of government departments and ultimately on service delivery.”
While recent years have seen an increase in public attention to debates and events in the National Assembly, the day-to-day work of parliamentary committees often escapes public engagement.
“Committees are the engine rooms in the legislatures, tasked with the development of laws and the critical work of interrogating the performance of the executive,” Kota said.
“The legislatures ongoing weaknesses in delivering on their mandates and their apparently worsening performance since the 2014 elections have made monitoring their performance even more necessary.”
During 2016, Parliament Watch members monitored meetings of committees at national and provincial legislatures, examining the ability of the members to critically engage with service delivery in an open and effective manner.
Monitors developed a scoring system to assess these criteria, and were in the process of preparing a comprehensive report on their findings, Kota said.
With good practices taken into account, Parliament Watch scored the overall performance of the legislatures below average.
“The blurring of the separation of powers between the legislatures and executive is a great concern, because the will of the executive is dominating,” said Right to Know Campaign’s Mhlobo Gunguluzi. “The impact of the increased securitisation of Parliament is also a serious problem.”
Measures to ensure public access could also improve.
Dalli Weyers, from the Social Justice Coalition, said, “After 22 years, you’d expect the legislatures to have made more progress in ensuring that a wider range of the public can access information from the legislatures to strengthen public engagement.
“But the measures for openness have become stuck and wide access is dependent on members of the public having support from civil society organisations.”
The following is Parliament Watch’s scoring of Parliament, parliamentary committees and the Eastern Cape legislature.
PARLIAMENT WATCH SCORING
Independence from the executive: 1/10
Parliamentary committees continue to appear weaker than the members of the executive over which they should exert accountability. In spite of shifting internal politics within the ANC which brought demonstrable improvements to the quality of authority over the executive at the end of 2016, the impact of this has yet to be seen and the norm, in which partisan allegiance influences committees and committee chairpersons to be protective of the executive, has not changed significantly.
Committee chairpersons’ performance: 5/10
The monitoring resulted in a diversity of experiences. There were many chairs who showed commitment to ensuring due process and a few who were willing to challenge members of the executive. However, we witnessed numerous situations in which committee chairs were protective and or deferential towards members of the executive, or where they blocked processes that could ensure accountability. Considering this range of factors, committee chairpersons scored 5/10.
ANC MPs’ meaningful engagement in committees: 4/10
We observed a small proportion of ANC MPs playing an active and effective role in committee meetings. Those few scored 8/10; however, the majority of ANC committee members scored a low 1/10, rendering an overall score of 4/10 for ANC members for their meaningful participation in committees.
DA MPs’ meaningful engagement in committees: 6/10
Overall, DA MPs came across as well prepared and as playing an engaged role in committees, often asking challenging questions of members of the executive. Parliament Watch monitors also observed that DA MPs frequently take positions for impact in committees, without committing to follow up actions themselves. Parliament Watch considers their input to increase deliberation and increase transparency, as should be the case in any parliamentary system.
EFF MPS meaningful engagement in committees: 4/10
Many EFF MPs in Parliament are new to working in the legislatures, and like all minority parties must divide a limited number of members across the committees. However, monitors strongly indicate that the EFF, a party that has attracted media attention through its strategies in the Assembly since 2014, is generally absent from committees and, for the most part, is not getting down to the nuts and bolts of committee work that could impact positively on service delivery.
Accessibility of national Parliament: 5/10
On the issue of accessibility, our constitutional provisions alone would result in a score of 8/10. However both national and the provincial legislatures monitored are not sufficiently improving their practices to increase public access and openness. Civil society organisations augment the measures taken by legislatures to increase access. The National Parliament thus scored 5/10 on the general implementation of the Constitutional obligations.
The Eastern Cape Provincial Legislature scored 4/10 for public access. The score is positively affected by the efforts of support staff to enable access for NGOs.
Securitisation of national Parliament: 1/10
The increased securitisation of Parliament over the past two and a half years is of grave concern and impacts on accessibility. This is plainly demonstrated by the more frequent use of barbed wire outside the parliamentary precinct, the increased police presence and the more frequent use of police force to disperse public protest. In addition to these more threatening measures, the newly implemented access control processes to enter the national Parliament contribute to a mood of suspicion.
Responsiveness to the Public: 4/10
We recognise that the legislatures have been responsive to the major politically charged issues such as the #FeesMustFall protests and the crisis of mismanagement at the SABC board. However, committees have failed to properly address other urgent issues affecting poor and marginalised people, including school infrastructure, inequitable police resourcing, and women’s inequality.
Oversight over departments: 4/10
On the oversight over departments, the regular oversight cycles were taken into account and the attempts of committees to perform these functions; however, the haste with which the oversight cycles are undertaken and the lack of follow-though on issues from all political parties has a negative impact on the score.
President Jacob Zuma will deliver this year’s State of the Nation Address on Thursday 9 February and the speech will be broadcast live on several channels, including SABC, at 7pm.
Parliament Watch collaborators include the Dullah Omar Institute, UWC (DOI); Equal Education Law Centre (EELC); Heinrich Boell Foundation (HBF); Livity Africa (LA); Parliamentary Monitoring Group (PMG); Public Service Accountability Monitor (PSAM); The Right to Know Campaign (R2K); Social Justice Coalition (SJC); and Women on Farms Project (WFP).
Herewith PSAM’s final Newsletter for 2016, profiling some of our work between September and December of this year, with a focus on profiling the PSAM conference held in October 2016. Do contact us with any comments, suggestions and other forms of feedback.