ON MY MIND
CATHLEEN POWELL: Firing a president
The president can feasibly be removed only if he has lost control of the party leadership as well as the confidence of parliament
The constitution of SA provides two different mechanisms by which the president may be removed — impeachment and a vote of no confidence.
In both cases, it is parliament that has to take the necessary steps.
Without actually using the term, section 89 of the constitution sets out the form of removal that is commonly known as impeachment — that is, removal for misconduct or incapacity.
Specifically, section 89 allows the national assembly to remove the president "only on the grounds" of a serious violation of the constitution or the law, serious misconduct or inability to perform the functions of the office.
Under section 89, the president can be removed only if two-thirds of the national assembly support the motion.
Section 102, on the other hand, uses the term "no confidence" and allows for the removal of cabinet as a whole, or cabinet excluding the president. It requires a simple majority vote.
Impeachment requires the support of two-thirds of MPs; a no-confidence motion needs a simple majority
Why the difference? A vote of no confidence arises from the subjective (political) judgment of the members of parliament. It does not imply fault on the president’s part.
MPs are the only officials elected directly by the people of SA. They are therefore given the power both to choose and fire the president, depending on whether they like the job that he or she is doing.
Anybody fired in this way retains all the financial benefits that accrue to a former president.
Impeachment, on the other hand, results from objective facts that indicate a serious shortcoming on the president’s part. A higher threshold is required because the vote to remove the president in this way is a severe condemnation, with extremely serious consequences: anybody removed under section 89 loses all the benefits that derive from that office, and is also barred from holding any other public office.
It would thus seem a fairly simple matter to remove a president, at least under section 102. All you need is for a sufficient number of members of the ruling party to vote with the opposition.
But MPs who vote against the leadership of their own party risk losing their seats. Their self-sacrifice may well not even wrest the presidency from the control of the faction that supported him.
Under our electoral system, individuals gain seats in the national assembly by being included on the "list" that their party submits before an election. SA law does not regulate how these lists are drawn up, so the power to determine who gets in to parliament lies with the party leadership — in the case of the ANC, the National Executive Committee (NEC).
So, if a breakaway group within the ANC were to vote to remove the president, these rogue MPs could be expelled by the ANC for ill-discipline (there is no provision for a secret ballot).
Once expelled from the ANC, the MPs lose their seats. The ANC leadership then determines who replaces the expelled members. The new appointment need not even have been on the party’s list at the previous election (Brian Molefe was not).
Once a president is removed, the national assembly has to elect a new president within 30 days. If it fails to do so, the acting president has to dissolve parliament and fresh elections must be held (section 50 of the constitution).
However, 30 days may be enough time to expel the rogue MPs and replace them with people who can be trusted to do what the NEC wants. That will include voting for the NEC’s next choice of president.
The president can thus feasibly be removed only if he has lost control of the party leadership as well as the confidence of parliament.
* Powell is senior lecturer in public law at the University of Cape Town