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Explainer: Recall, motion of no confidence and impeachment

When the ANC “recalled” Thabo Mbeki as president of the republic in 2008, there was no need for Parliament to get involved or for the governing party to trigger any process under the Constitution. When it was made clear to Mbeki that his party no longer wanted him to be state president, he resigned voluntarily.

Unlike his predecessor, President Jacob Zuma is having none of it and has refused to resign.

Because the state president is elected by Parliament, the party cannot of its own accord force him to step down as state president. If the ANC wants to remove him, it would require a removal process by parliament under the Constitution.

How to go about the removal of a state president is set out in section 102 of the Constitution, which is designed for situations such as this. It allows for a motion of no confidence in the president to be tabled in Parliament and it is passed by a simple majority. If it is passed, the president must resign, along with his Cabinet.

Section 102 does not require any misconduct or incapacity on the part of the president. It is a constitutional mechanism for the majority party to recall its president if it has lost confidence in him.

It is a relatively easy process in comparison to impeachment, in section 89, which requires a two-thirds majority vote in Parliament and for the president to have committed a serious violation of the Constitution or the law, committed serious misconduct or is unable to perform functions of the office. The Constitutional Court has also said impeachment requires an earlier process before an impeachment vote can be held and that rules must be set up for how this process should work.

Although Zuma has easily survived seven votes of no confidence, all these were tabled by opposition parties and were bound to fail since the ANC did not support them. Now, if the governing party directs its MPs to vote they have lost confidence in Zuma, it is much more likely that the motion would pass.

However, this may be complicated by the Constitutional Court’s United Democratic Movement judgment, which states: “Members are required to swear or affirm faithfulness to the Republic and obedience to the Constitution and laws. Nowhere does the supreme law provide for them to swear allegiance to their political parties, important players though they are in our constitutional scheme. Meaning, in the event of conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail.”

Theoretically then, if MPs’ consciences required them to vote against the motion, they would lawfully be able to do so. 

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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