South Africa: No confidence vote looming?

The National Executive Committee (NEC) of the ruling African National Congress (ANC) in South Africa is attempting to get President Jacob Zuma to resign. Media coverage of this (such as a BBC story from 5 Feb.) too often implies that this is a “normal” presidency with a fixed term. However, despite the title, as far as executive survival in office is concerned, South Africa’s head of government is a prime minister. He can be removed by a vote of no confidence.

See the Constitution of South Africa, Article 102(2):

If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.

It could hardly be more clear than that. So if the ANC (which has far more than a majority of assembly seas) wants Zuma out, there’s no question how this will end. Zuma may have his own reasons to want to make the party go through the spectacle of a no-confidence vote, rather than step down “voluntarily”, but he does indeed serve at their pleasure.

It is also not as if is unusual in parliamentary systems for parties to replace their leader and the prime minister before an election. In Presidents, Parties, and Prime Ministers, David Samuels and I show that roughly a third of PMs in parliamentary democracies lose office by an intra-party procedure (rather than by losing a general election or leading a coalition that collapses). We did not note the timing of such removals relative to elections, but there is little doubt that many of the party-initiated removals take place closer to the next election than the preceding one. (In most such systems, the election can be called early on initiative of the new PM. The South African constitution also has a provision for early election, at the initiative of the assembly majority itself–Art. 50.)

Already this past December the ANC’s convention narrowly voted to elect Cyril Ramaphosa as head of the party (over Zuma’s ex-wife). He will lead the party in the campaign for the general election of 2019, whether or not Zuma is still president at the time.

A key difference in South Africa, compared to most other parliamentary systems, is that the prime minister is also the head of state–hence the title, President. In fact, other constitutional provisions in South Africa seem lifted from an actual presidential system (i.e., one in which the head of government is popularly elected for a fixed term). For instance, Article 89 has a provision for impeachment:

  1. The National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the grounds of ­

a. a serious violation of the Constitution or the law;

b. serious misconduct; or

c. inability to perform the functions of office.

It is hard to imagine what this is doing in a parliamentary constitution! If, like most parliamentary republics, the head of state (“President”) and the head of government (“Prime Minister”) were separate persons, the presence of both provisions quoted here would make sense. But what purpose does an impeachment clause, requiring a super majority, have in a constitution that lets the assembly remove the combined president/PM by a much simpler procedure?

The pressure is ramping up, the State of the Nation speech has been postponed, and the rumors are running rampant ahead of a special meeting of the NEC. The party leadership body could “recall” him in a manner similar to how Thabo Mbeki’s term ended early in 2008. However, that is a party procedure with no legal standing and thus would not be binding on the President.

Will he resign, or will the ANC need to invoke Art. 102?

 

22 thoughts on “South Africa: No confidence vote looming?

  1. I believe Section 89 is an enforcement provision. If Zuma does not resign I expect the vote of no confidence to pass with the support of opposition MPs and some but not all ANC MPs. Section 102 merely requires the president to resign after a vote of no confidence. Zuma is entirely capable of submitting a resignation that takes effect sometime in 1919, perhaps on the day his term ends.

    In that case I would expect Parliament to invoke Section 89. The section also has much more serious consequences than 102.

    2. Anyone who has been removed from the office of President in terms of subsection (1) (a) or (b) may not receive any benefits of that office, and may not serve in any public office.

    • “Zuma is entirely capable of submitting a resignation that takes effect sometime in 1919, perhaps on the day his term ends”

      This seems rather unusual to me. Has this been tested by the judiciary?

      • No president has ever been the subject of a successful vote of no confidence. Mbeki chose to resign when so directed by the ANC. It follows the courts have never had to interpret the the lack of time limits for resignation in Section 102.

        However, the ANC caucus in the national assembly has repeatedly resorted to strange interpretations to defend Zuma. At one stage the ANC position, endorsed by the speaker, was that impeachments and votes of no confidence could not be considered because the assembly standing orders did not explicitly provide how to deal with them.

        The national assembly is finalising impeachment rules at the moment because the constitutional court ordered them to make rules that allowed impeachments to be dealt with in a timely way.

  2. Or what happens if he doesn’t resign? Perhaps the courts could order him to resign. And then he doesn’t resign and he gets held in contempt, and now the president is locked up in prison on contempt of court, but is he still the president? These provisions seem like a recipe for a constitutional crisis. One hopes every president resigns as soon as they are obliged to. Explicitly making the president serve at the pleasure of the parliament seems like a safer way to make presidential prime minister.

      • Or ‘must resign within 7 days or be mandatorily dismissed by some neutral official or body’ is better still.

      • Ireland has a committee of the chief justice, the speaker and the president. Iceland has a committee of the prime minister, the chief justice and the speaker. There could be a case for a temporary presidential commission, although obviously its membership should not include anyone charged with actually dismissing a recalcitrant president. Another problem with the current provisions in South Africa is that a recalcitrant president can appoint who they wish as deputy president before resigning.

        The alternative would be to provide for a constructive vote of no confidence. They could even emulate PNG where the new prime minister designated by a vote of no confidence becomes acting prime minister the instant the vote passes.

      • “They could even emulate PNG where the new prime minister designated by a vote of no confidence becomes acting prime minister the instant the vote passes.”

        Would be lovely to have the swearing in right there on the floor of the house, immediately after a succesful vote. Would really underscore the supremacy of parliament over the executive.

      • “Ireland has a committee of the chief justice, the speaker and the president. Iceland has a committee of the prime minister, the chief justice and the speaker.”

        I did a post about Kiribati, which directly elects a head of state and government who is also responsible to the legislature, some time ago. Given that the space between the defeat of a government by the legislature and the election of a new government is much greater than in parliamentary countries, they also have a Council of State, composed of the Chairman of the Public Service Commission, the Chief Justice, and the Speaker. Israel’s 1992 Basic Law doesn’t mention this-did the PM just serve in an interim role?

  3. The constitution does have a rule about emoting, although it is not obvious.

    237. DILIGENT PERFORMANCE OF OBLIGATIONS
    All constitutional obligations must be performed diligently and without delay.

    If Zuma refusesd to resign or resigns with an absurd effective date I imagine the constitutional court would find itself seized with a Section 237 case almost instantaneously. I’d also imagine the speaker would be sworn in as acting president immediately the vote of no confidence passes on Thursday.

  4. Zuma just resigned with immediate effect according to Al-Jazeera, SABC and Bloomberg. Ramaphosa will act as president until an election by the national assembly, possibly, on Friday.

      • The resignation did come hours after the arrest of members of the Gupta family who starred in the public protector’s report State Capture. The Guptas were so central to Zuma’s misrule that some South African media are talking about the fall of the house of Zupta.

        More seriously, the whole episode shows that South Africa has a rather robust constitution. Zuma was not able to subvert the courts or the independent institutions. He was not able to prevent the public protector to pay back the money spent on his private house at Nkandla. Indeed Ramaphosa’s victory in the contest for the ANC presidency was built on the courts throwing out a bloc of pro-Zuma delegates who had been elected improperly.

        Much of Zuma’s difficulties in controlling various government institutions was built on the constitution’s frequent requirement that appointees to certain positions be ‘fit and proper persons’. A number of Zuma appointees to positions in the SABC, the national prosecuting authority, and other agencies were ousted by the courts as not being fit and proper persons.

      • “More seriously, the whole episode shows that South Africa has a rather robust constitution.” I agree. South Africa passes this test with flying colours.

        I do wonder though: if Zuma had stayed on 1) until losing a non-confidence vote or 2) until the courts told him he had to go after losing a no-confidence vote, would that have been an even bigger sign of South African constitutional robustness? Or less?

      • I would vote ‘less’. I am assuming Zuma realised he could not defy parliament, that he had lost control of the ANC, and that there was no way to retain power short of attempting to suspend the constitution. The great test for South African democracy will be when the ANC loses its electoral majority. I had thought that could happen in 2019 but I no longer think that is the case if Ramaphosa manages to get some runs on the board against corruption.

        An interesting test will be the immediate future of Ace Magashule, the Free State premier and ANC secretary-general who was elected secretary-general as a Zuma supporter and has his own problems with corruption.

        A historical footnote is that Mandela wanted Ramaphosa as his successor but was overruled by a coalition of party veterans and external wing figures who argued that he was too young. No Mbeki would almost certainly have meant no Zuma.

  5. “The great test for South African democracy will be when the ANC loses its electoral majority.” Yes, I certainly agree with that.

    And I also am thinking along with Alan that getting Zuma out now lowers their risk of that happening in 2019. Presumably, the main reason parties change PMs before elections is precisely to go into the next election with someone fresher, but in office long enough to have a record of some accomplishments to run on.

    (And I do like “House of Zupta”!)

    • Minority Government, I don’t think it is likely the ANC will lose its majority in 2019. A slender majority is most likely.

    • Perhaps this post belongs in the State of the Union thread. Ramaphosa just gave his State of the Nation address. The big difference from the State of the Union address in the US is that the parliament will debate the speech and send a reply. Spmee of the minor differences are slightly strange. A series of processions happen before the president arrives, including the judiciary, all provincial premiers and all provincial speakers. There is a military parade, a band and a flyover. Mbeki and de Klerk attended, apparently for the first time in many years. Also for the first time in many years, people waved and cheered the presidential motorcade.

      The strangest difference was the red carpet and the number of fabulous frocks. Almost everyone (including men) was asked who had designed their outfit as well as more standard policy questions.

      • I left out the choir, but I assumed I could take it as read that all public ceremony in South Africa involves singing and dancing.

      • I really see them as the same thing. It’s just that the US, for various reasons, has not developed the accountability mechanisms that have become associated with the throne speech since 1787 in other countries.

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