Get­ting rid of a pres­i­dent

The Star Early Edition - - OPINION & ANALYSIS - DOU­GLAS GIB­SON

LAST Fri­day I watched the 2007 film, The Color of Free­dom, rechris­tened Good­bye Bafana. It’s the in­trigu­ing story of Nel­son Man­dela’s im­pris­on­ment and his in­ter­ac­tion with his jailer, James Gre­gory. To my sur­prise, I found my­self in tears sev­eral times, moved by the no­bil­ity of which some hu­man be­ings are ca­pa­ble. This got me to think­ing about the pres­i­dency and the bat­tle be­ing waged against the present in­cum­bent.

Some peo­ple dis­ap­prove of Par­lia­ment elect­ing pres­i­dents in­stead of it be­ing done by our peo­ple. I dis­agree.

As one of those who helped draw the con­sti­tu­tion, I can say we felt that there were too many “big men” in Africa. Pres­i­dents with their own man­date are more in­de­pen­dent and are not an­swer­able to Par­lia­ment and the rep­re­sen­ta­tives of the peo­ple. Even though we had some­one of Man­dela’s cal­i­bre, we did not want him and his suc­ces­sors to be able to ig­nore Par­lia­ment. Our coun­try didn’t need a “big man”.

Pres­i­dents elected by the peo­ple are not sub­ject to votes of no con­fi­dence or “re­call” as was done by the ANC to Pres­i­dent Thabo Mbeki. Di­rectly elected pres­i­dents can gen­er­ally be re­moved, to use the Amer­i­can term, “for high crimes and mis­de­meanours” by im­peach­ment.

Our con­sti­tu­tion pro­vides for the re­moval of a pres­i­dent, but re­quires a twothirds ma­jor­ity of MPs and only on the grounds of a se­ri­ous vi­o­la­tion of the con­sti­tu­tion, se­ri­ous mis­con­duct or in­abil­ity to per­form the func­tions of of­fice.

A pres­i­dent whose party has a ma­jor­ity in Par­lia­ment need not con­sider the pos­si­bil­ity of be­ing im­peached. This was how Pres­i­dent Ja­cob Zuma es­caped im­peach­ment even though found by our Con­sti­tu­tional Court to have vi­o­lated the con­sti­tu­tion.

A mo­tion of no con­fi­dence is a sim­pler and more ef­fec­tive pro­ce­dure need­ing only a sim­ple ma­jor­ity. That is what Zuma is set to face on Au­gust 8. I don’t ex­pect the no-con­fi­dence mo­tion to pro­ceed then or any time soon.

The Rules of Par­lia­ment do not pro­vide for a se­cret bal­lot of mem­bers on mo­tions of this type. In re­sponse to a clam­our from the me­dia, some of the po­lit­i­cal par­ties and many mem­bers of the pub­lic, one of the smaller par­ties, ap­plied to court for an or­der in­struct­ing the Speaker to ar­range for a se­cret bal­lot.

Chief Jus­tice Mo­go­eng Mo­go­eng en­joined the Speaker to ex­er­cise the pow­ers she has and to de­cide for or against a se­cret bal­lot, but only on ra­tio­nal grounds. She has still to an­nounce her de­ci­sion. The ANC and the DA said they would abide by her de­ci­sion but many of the smaller par­ties were adamant the vote must be se­cret so that MPs could “fol­low their con­sciences”. The ex­pec­ta­tion is that MPs will not vote with their con­sciences un­less they can do so in se­cret, free of any ad­verse con­se­quences if they defy their party whips and vote against the party leader and con­trary to the cau­cus’s de­ci­sion.

The Speaker is in the ex­quis­ite po­si­tion of hav­ing ma­jor and in­sol­u­ble con­flicts of in­ter­est. She isn’t only the Speaker, she’s also the ANC na­tional chair­per­son and a de­clared as­pi­rant for the party’s lead­er­ship and South Africa’s pres­i­dency. Per­haps more sig­nif­i­cantly, given her as­pi­ra­tions, the con­sti­tu­tion pro­vides that if the mo­tion of no con­fi­dence is car­ried, the pres­i­dent, the deputy pres­i­dent and the whole cab­i­net must re­sign. The Speaker be­comes the act­ing pres­i­dent – a mouth-wa­ter­ing prospect for an as­pir­ing pres­i­dent. Surely she can­not act im­par­tially in these cir­cum­stances? The op­po­si­tion is right in re­quest­ing the Speaker to re­cuse her­self.

I pre­dict she won’t re­cuse her­self. She will cal­cu­late what will be in the in­ter­ests of her can­di­dacy. With one ex­cep­tion only, she will give in to the pres­sure from Zuma and the ANC hi­er­ar­chy and de­cree an open vote. This would re­sult in a fail­ure of the mo­tion be­cause not many ANC MPs be­lieve that an open and proud con­science vote is the right thing.

The ex­cep­tion is if she be­lieves the mo­tion will be car­ried in a se­cret bal­lot; she might defy the pres­i­dent and opt for se­crecy be­cause that would open the way for her am­bi­tions.

Even if a se­cret bal­lot takes place, the mo­tion will fail be­cause not nearly enough ANC MPs, many of them happy trough-feed­ers, will wish to dis­turb mat­ters by vot­ing against their man in favour of an op­po­si­tion mo­tion. They have watched the cor­rup­tion and the mal­ad­min­is­tra­tion for years and re­mained si­lent.

The mo­ment Speaker Mbete an­nounces that the bal­lot will be open, she will be taken to court and months will elapse be­fore we have a judg­ment. Zuma will re­main pres­i­dent at least un­til af­ter De­cem­ber when he ceases to be the leader of the ANC. Per­haps he will be tol­er­ated for a while there­after by who­ever suc­ceeds him. At least he can’t re­main on af­ter the 2019 elec­tion. The only good news is that the prospect of an act­ing Pres­i­dent Mbete, let alone Pres­i­dent Mbete, is re­mote.

A DUD: A pres­i­dent whose party has a ma­jor­ity needn’t con­sider be­ing im­peached, but a mo­tion of no con­fi­dence needs only a sim­ple ma­jor­ity, says the writer, adding that he doesn’t see it hap­pen­ing against Pres­i­dent Ja­cob Zuma.

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