The ANC and the President seem to be rather confused about the clear provisions in the Constitution regarding what happens when a President decides to resign. At the news conference earlier today to announce the decision of the ANC National Executive Committee (NEC) to “recall” President Mbeki, Gwede Mantashe said that the Constitution was silent about what must happen when a sitting President resigns and referred to “Parliamentary processes” that will deal with this situation.
Now the Presidency has issued a statement saying that he accepts the decision of the ANC and then continues:
Following the decision of the national executive committee of the African National Congress to recall President Thabo Mbeki, the president has obliged and will step down after all constitutional requirements have been met.
This seems rather perplexing as section 90 of the Constitution makes it very clear what happens when a President resigns. This section states that when a vacancy occurs in the office of President, an office-bearer in the order below acts as President:
- The Deputy President.
- A Minister designated by the President.
- A Minister designated by the other members of the Cabinet.
- The Speaker, until the National Assembly designates one of its other members.
If the President resigns (or if he dies or is removed by a vote of no confidence in terms of section 102) a vacancy occurs in the office of the President and this section kicks in. Simple as that. Parliament is not involved at all in the process of designating an acting President and there are no “Parliamentary processes” or “constitutional requirements” to be met. I am therefore not sure what the ANC and the President is talking about. Are they confused?
The Parliament only becomes involved if the President refuses to resign and a vote of no confidence is instituted in terms of section 102(2) of the Constitution or when a new President must be elected from amongst the members of the National Assembly within 30 days after the president’s resignation.
All that is required is for the President to announce his resignation after which an acting President – in the order set out above – will take over until a new President is elected. If the National Assembly decides not to elect a new President, an election must then be held within 90 days.
This all seems rather clear to me. Am I missing something or is there something else going on that these gentlemen talk about “parliamentary processes” and “constitutiona requirements”? I really do not understand.
TM has a beautiful mind. I fail to see the deputy president resigning even if she has alluded to resigning. And if the ‘constitutional requirements’ are as Pierre spells them out, the deputy president will be president. TM always wanted her to be president, anyway. Then we are back to square one. Another NEC meeting to recall the new president will then need to be called.
I am glad, I am home —- riveting.
Prof can it realy be that complex and difficult. How come these guys did not consult. I do not think it will happen that ngcuka takes over. Its impossible. Let us wait and see. Khosi , your lovely Mlambo has already indicated throuth her spokeperson her intens to resign once the president files in papers.
I wonder the root of their coneection. can some one investigate.
….and should I add proof how about give Luthuli a call and offer your services. I guess we realy in need of a constitutional adviser. How about addressing the whole NEC of its options in this matter.
Oh boy I must be dreaming.
I must agree Pierre, it is very odd that Mbeki doesn’t just resign. What is he waiting for??
One thing is fo sure Mbeki has a lot more Honour that Jacob Zuma!
Better to go down quitely, that to have the national asembly lose confidence in Him! I wonder if he has an Ace up his sleeve!
Anyone Know when he will be addressing the Nation? I do not want to miss it!
Interesting times.
As a law student this is surely more than practical,at least i won’t have mere theory on my side,im actually living through this landmark “tipping point”.
Khosi
Why do you seem so upbeat? No anything we don’t?
I was somewhat interested in Gwede Mantashe’s devolution of the ANC…
“the Movement” – “the Movement” – “the Movement” – …
erm wasn’t it a movement that became a banned organisation, that became a political party…
now it’s a movement again…
Good gracious gazoonkleberries our country has IBS…
let me reach for my medicine…
z,
i watched a recording of the presidents press conference with Sepp Blatter last sunday.
First, it was carried live on the SABC, a bit odd for that type of news conference.
Most tellingly, he said he knows who will be in governent next year and would not be telling us. Now WTF was that statement about?
But if people think that he is down and out, they need to look closer at public sentiment. I would also think that tonight, he will use his public address to show the nation that he is the responsible leader who is saving the country from the irresponsible actions of his dismissal.
Khosi
What? I understand your tone now. I missed that, but it is weird!
Spelling Correction (oi!):
No anything we don’t?
SHOULD BE
Know anything we don’t?
Pierre,
thanks for such an informative blog. Am no legal mind, but I understood something different from the statement that Mr M would step down “once all constitutional requirements have been met”. This sounds to me like it refers to constitutional requirements that must be fulfilled PRIOR (or leading up) to resignation and not afterwards – not what happens re replacing him. Could you let us know what any such requirements could be – i.e. the manner in which he is asked to resign, if he has to be presented with some sort of ultimatum or documentation (or if he has to provide some himself?) …. ?
What do you guys make of this sms:
“This is a message from NEC members. Things are
bad Mshana. Writing is on the wall. Argument is that if TM stays, he and NPA will win appeal and JZ will be charged. They say it openly. They need a Pres who will give amnesty to JZ, Maharaj, Schippy (sic) Shaik, and stop investigation of Ramatlodi. They are making it clear Pius, Dikgang, Albie Sachs, Adv Mpshe must go.
“Objective is clear, get in a Pres who will kick out Mpshe and agree to amnesty and weaken the NPA. The way Malema speaks, is clear JZ is ransomed and cannot escape imprisonment by these forces . ..
“Nkosazana was jeered by Lindiwe Zulu when she advanced timing of expelling Mbeki towards elections. Even Kgalema is intimidated Mshana. I just feel sorry for Mpshe cost (sic) Malema and Blade will target him. JZ has destroyed ANC. Do not be optimistic. Mafia rules ANC. It’s about suppressing corruption and Mbeki refused to do so.
“Also under attack was Prof Gutto, by Nyanda, who asked why he was given citizenship. No one speaks about merits of JZ’s case.”
http://www.thetimes.co.za/PrintEdition/Article.aspx?id=847716
This is a message sent by one of Mbeki’s supporters!
These are indeed trying times we live in!
Vusi
All I can say is the word Mafia also came to my mind tonight.
Z – ‘Mafia’? What about ‘Illuminati’?
Mouse
Too sophisticated!
Pierre,
It seems to me that you are correct. I think that President Mbeki’s submission of his letter of resignation to the speaker was irregular. He should have submitted it to the deputy president. The constitution is clear that there’s a hierachy of appointees should there be a vacancy in the presidency. Indeed, the next candidate for the acting presidency is the deputy president, and should she also resign, at the same time as the president or before, a person appointed as such by the president. The present parliamentary processes, that we read of, are therefore irregullar and subject to constitutional challenge!
Z – Too sophisticated – I agree, if, of course I was implying that ANC cadres are part of the illuminati. However, what I was trying to say, was that some of the ANC cadres might have been bought (and are controlled) by that org, don’t you think there is merit? Suddenly all the ‘third force’ and ‘conspiracy’ theories would have been lent substance. Ooh, I love stirring through ridicule!
My name is Phillip Stanley Bougard, born in Windhoek, Namibia, schooled in, amongst other places, Cofimvaba, De Aar, Upington, Kensington, Cape Town. Lived in Jhb 12 years, currently a Canadian citizen, living in Toronto, Ontario Province, Canada.
I am HIGHLY upset, at the way the SACP seem to “worm” their way into government. I had asked an International Law Expert at both Harvard and NYU in New York City, as well as The University of Toronto’s Law Faculty, to look into this “UNHOLY ALLIANCE” of the ANC/SACP/Cosatu
I am also planning, to seek International funding, to challenge this very same “UNHOLY ALLIANCE” at The South African Constitutional Court. Could you suggest, a South African Constitutional Law Expert, willing to take on a case like this? Could you forward this email to such a person, if you know of them?
Also, I was always under the impression, that the “tripartite agreement” at CODESA, Kempton PARK, was meant to be temporary, with the ONLY INTENTION, of defeating the old, National Party, during South Africa’s FIRST ALL-Race elections. Did such a clause exist at all? If so, can it be found?
Hoping to hear from you, at your earliest convenience.
I remain.
Respectfully Yours.
Phillip Stanley Bougard
Toronto, Canada