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,[1] 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.[2] 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.[3] 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.[4] 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.[5] 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.[6]
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.[7] 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.[8] 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.[9]
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.[10] 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.[11] 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.[12] 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”.[13] 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.[14]
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.[15] 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”.[16]
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.[17]
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[18]; “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
[1] http://www.news24.com/SouthAfrica/News/concourt-refuses-to-hear-npa-appeal-on-zuma-corruption-charges-da-20161007
[2] Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11 para 36.
[3] https://www.dailymaverick.co.za/opinionista/2017-03-08-sassas-forgotten-17-million-are-real-people/#.WRFgQtwlHDc
[4] https://www.dailymaverick.co.za/article/2017-04-11-iss-today-south-africa-pays-the-price-of-state-capture/#.WRFdX9wlHDc
[5] S89(1) of the Constitution of the Republic of South Africa.
[6] S89(2) of the Constitution of the Republic of South Africa.
[7] S102(2) of the Constitution of the Republic of South Africa.
[8] http://www.news24.com/SouthAfrica/News/anc-mps-must-toe-party-line-or-be-replaced-mabuza-20170403.
[9] Schedule 3, section 6 of the Constitution of South Africa.
[10] 2016 (1) SA 534 (WCC) at 5.
[11] 2016 (1) SA 534 (WCC).
[12] 2016 (1) SA 534 (WCC).
[13] 2016 (1) SA 534 (WCC) at 123.
[14] S53(1)(c) of the Constitution of South Africa.
[15] http://constitutionallyspeaking.co.za/on-a-secret-ballot-in-the-no-confidence-vote-against-president-zuma/.
[16] R104(1) of the Rules of the National Assembly, 9th ed.
[17] S57 of the Constitution of the Republic of South Africa.
[18] Act 4 of 2004.