Get more Mail & Guardian
Subscribe or Login

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. 

Subscribe for R500/year

Thanks for enjoying the Mail & Guardian, we’re proud of our 36 year history, throughout which we have delivered to readers the most important, unbiased stories in South Africa. Good journalism costs, though, and right from our very first edition we’ve relied on reader subscriptions to protect our independence.

Digital subscribers get access to all of our award-winning journalism, including premium features, as well as exclusive events, newsletters, webinars and the cryptic crossword. Click here to find out how to join them and get a 57% discount in your first year.

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

Related stories

WELCOME TO YOUR M&G

If you’re reading this, you clearly have great taste

If you haven’t already, you can subscribe to the Mail & Guardian for less than the cost of a cup of coffee a week, and get more great reads.

Already a subscriber? Sign in here

Advertising

Subscribers only

Fears of violence persist a year after the murder of...

The court battle to stop coal mining in rural KwaZulu-Natal has heightened the sense of danger among environmental activists

Data shows EFF has lower negative sentiment online among voters...

The EFF has a stronger online presence than the ANC and Democratic Alliance

More top stories

Libyan town clings to memory of Gaddafi, 10 years on

Rebels killed Muammar Gaddafi in his hometown of Sirte on 20 October 2011, months into the Nato-backed rebellion that ended his four-decade rule

Fishing subsidies in the W. Cape: ‘Illegal fishing is our...

Fishers claim they are forced into illegal trawling because subsidies only benefit big vessels

Kenya’s beach boys fall into sex tourism, trafficking

In the face of their families’ poverty, young men, persuaded by the prospect of wealth or education, travel to Europe with their older female sponsors only to be trafficked for sex
Advertising

press releases

Loading latest Press Releases…
×