How exactly will our president depart from office – apart from reluctantly?
WITH the election of Cyril Ramaphosa as the new president of the ANC last month at its elective conference, most informed commentators are of the opinion that President Zuma will not see out his two terms and that it is only a matter of time before he departs from the presidency.
The vital political issue is how exactly he will depart from the office of president. It is abundantly clear that pressure is building up for Zuma to resign. It is unlikely that he will easily resign merely because of the pressure that exists at present. Zuma has demonstrated that he is a consummate political fighter and is likely to strongly resist.
Besides resignation, what are the mechanisms that could apply or be of influence in relation to his removal from office? This piece attempts to explore and speculate on these possibilities.
As far as a resignation is concerned, this could flow from the recall of Zuma by the national executive committee (NEC) of the ANC, as occurred with former president Thabo Mbeki. This option is problematic because Zuma is very different from Mbeki, and the NEC may not be able to reach a unanimous decision on the question of recall. Furthermore, so-called recall is not legally binding, and Zuma will resist.
Should this be the case, it is necessary to examine the constitution in relation to the removal of the president. Section 89 provides for the removal of the president by impeachment, while section 102(2) deals with motions of no confidence, which if successful require the president to resign.
This vote of no confidence can on request be by a secret ballot, as was ruled by the Constitutional Court in an important judgment last year.
It is submitted that if Zuma refuses to resign before Parliament reassembles next month, it is very likely that section 102(2) will be put into operation and will be precipitated by either opposition parties or indeed the governing party or members of it.
In an important case, the Constitutional Court held on December 29 that the National Assembly had failed in its constitutional obligation to hold Zuma accountable, and to be able to proceed with his impeachment following the release of the Nkandla report and the Nkandla judgment of the Constitutional Court.
In an important majority judgment by Justice Chris Jafta, the Constitutional Court considered the serious consequences and implications of the impeachment proceedings provided for in section 89 of the constitution, which authorise the National Assembly exclusively, by a vote of two-thirds of its members, to remove the president from office.
A constitutional prerequisite for such a drastic process of impeachment is as stipulated in section 89(1) a factual inquiry into whether one of a triple of listed grounds is present, as set out above.
What the court found was that there were actually no rules in place to address what was required by the process that is set out in section 89, and furthermore that the National Assembly was obligated by the constitution, as the supreme law of the land, to do so.
As a result, the court ordered the National Assembly to make appropriate rules regulating the procedure required by section 89(1) within 120 days from the date of its order.
All things considered, from the point of view of realpolitik, it is submitted that the National Assembly is unlikely to begin impeachment proceeding against Zuma, but is more likely to institute a noconfidence motion in terms of section 102(2) as explained above.
It is significant to note there are two consequences of a successful motion of no confidence. First, as is the position with a successful impeachment, the president retains all his considerable rights and benefits as an erstwhile president.
Secondly, impeachment requires two-thirds of the members of the National Assembly to support a vote in this regard. It appears that the impeachment option is very unlikely.
In relation to a motion of no confidence, it is submitted that there is the real possibility that Zuma will pre-empt this and resign if it appears that such a motion would be successful.
Considerable political negotiation is likely to precede this and has apparently already started, and Zuma will obviously endeavour to obtain the most favourable terms in relation to his position and people closely associated with him, as well as some of his very controversial political and financial activities after retirement.
The ANC would try to ensure as best it can to adroitly manage the departure of Zuma in a manner that preserves the unity of the party.
Should he resign, there will be a vacancy in the office of the presidency, and then section 86(3) will become operative. This requires the election of a new president within 30 days.
It should be noted that if the National Assembly fails to elect a new president within 30 days, section 50(2) (b) provides for a dissolution of it and a general election must be held. This, it is submitted, is very unlikely to occur for obvious reasons and a new president will be elected within the 30-day period.
It is submitted that at such an election, Ramaphosa would be elected as president. According to section 90(1), he would be acting president until he is formally elected president after election in terms of section 89(3).
As the new president, he would have a free hand in appointing his cabinet and continue in office until the national elections, which must take place in 2019.
Devenish is emeritus professor at UKZN and one of the scholars who assisted in drafting the interim constitution in 1993.