System of government is the key to understanding a no-confidence motion
TO UNDERSTAND the controversy relating to the proposed no-confidence motion in President Jacob Zuma it is necessary to comprehend the difference between presidential and parliamentary systems of government.
In the UK, famous for the Westminster paradigm, the system of parliamentary government developed over more than 1 000 years. In this mode there are both a head of state and a head of government. The former is the monarch, Queen Elizabeth II, who being titular, reigns but does not rule, the latter is the prime minister, Teresa May, in whom actual power to govern vests, and who with her cabinet sits in the House of Commons, to which she is accountable and therefore must maintain a majority.
This gives rise to responsible government, which is a defining feature of the Westminster system. If the prime minister is defeated in a vote of confidence in the House, he or she must by virtue of convention, seek a dissolution from the monarch and a general election takes place.
In contrast, in the US the doctrine of separation of powers prevails, resulting in a pure presidential system of government. In such a system the president is elected for a fixed term and is not accountable to the legislature, that is, the Congress, consisting of the House of Representatives and the Senate. Neither the president nor his cabinet sit in either of the two houses and are not accountable to them.
The American president cannot be removed by a vote of no-confidence in Congress, but only by a process of formal impeachment as set out in the constitution.
In South Africa, although we have an elected president, we have retained an essentially parliamentary system of executive government. The reason for this is that when our president is elected by the National Assembly (NA), he resigns his seat in Parliament to become an executive head of state and head of the executive. But, with the exception of not more than two, the ministers of state he appoints are obliged to sit in the assembly and are accountable to it. A motion of no-confidence can be brought against him in terms of section 102(2) of the constitution, carried by a majority of members, and which if successful obliges him and his cabinet to resign. A South African president can also in a different formal procedure be impeached or removed from office in terms of section 89, involving a two thirds majority in the assembly.
The actual constitutional position in South Africa is a hybrid, parliamentary-presidential, not dissimilar to that in France where the president does not sit in and is therefore not accountable to Parliament, but his ministers are obliged to be members and account to it.
South Africa has adopted an electoral system based on proportional representation involving party lists, which although it has some advantaged by virtue of its proportional character, unfortunately gives the leadership of political parties monopolistic control over public representatives, while simultaneously freeing them from the legitimate and necessary constituency pressures to which representatives in the Westminster – first past the post system – are subject to and which was used in elections in South Africa, before 1994.
It now becomes clear why the opposition parties have made application to the Constitutional Court for a secret ballot to be used in the assembly when the motion of no-confidence is proposed in the president. Voting by ANC members for the vote of no-confidence would allow the ANC to immediately deprive them of their seats in the assembly. In effect, they do not have a free mandate when it comes to how they exercise their vote and are obliged to toe the line, unlike the position in a constituency system based on the Westminster paradigm.
It is for this reason that most informed political commentators consider the extant electoral system defective. Although the Van Zyl Slabbert Commission, appointed to investigate a new structure, recommended a hybrid system similar to the German one, involving elements of both proportional as well as constituency representation, no action was taken in this regard and the extant list system continues to operate, despite its manifest flaws, as indicated above.
Opposition parties and members of prominent civil society bodies are convinced, considering the manifest dissension in the governing ANC relating to the cabinet reshuffle and subsequent downgrading of our economy by the rating agencies to junk status, that were a secret ballot allowed, there is a strong probability that sufficient members of the ANC would vote with opposition members in a no-confidence motion, thereby resulting in the termination of Zuma’s office of president.
However, if there is an open vote, ANC members in general are very unlikely to defy their caucus and vote according to their conscience. It is therefore manifestly clear that the ruling of the Concourt on whether the Speaker can be compelled to hold a secret ballot is of crucial importance. Indeed, not only the fate of Zuma, but that of the country depends on this.
Devenish is an emeritus professor at UKZN and one of the scholars that assisted in drafting the Interim Constitution in 1993