As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Our friend kortbroek Malema, leader of the ANC Youth League, is quoted this morning as having said that the majority of ANC national executive committee members agree that President Thabo Mbeki must be removed from office. According to News24:
“We have approached individual members of the ANC NEC to ensure that the removal of Thabo Mbeki becomes an ANC NEC resolution this weekend, and the majority of them are agreeing with us on this issue,” said ANCYL president Julius Malema at a media briefing in Johannesburg. “We will have Mbeki removed. We don’t fight to lose. He is going. It doesn’t matter who said what, Mbeki won’t be president when we go to the election.
If this is true and if Malema is not just talking through his nose, the question is how the ANC will legally be able to get rid of President Mbeki and what would happen if it does. The President is not a member of the National Assembly and holds his office independent of any membership of a political party. Unlike with any ANC member of Parliament, the ANC will therefore not be able to get rid of Mbeki merely by expelling him from the party or by “redeploying” him to an ambassadorship to outer Mongolia.
The ANC may, of course, ask President Mbeki to resign. If he agrees (but will this stubborn man agree to such a humiliation?) the Constitution determines that a new President must be chosen within 30 days from among the members of the National Assembly. In the meantime the Deputy President will act as President or if she also resigns, a Minister designated by the other members of the cabinet will act as President until a new President is chosen.
If President Mbeki refuses to resign, the National Assembly can pass a vote of no confidence in the President and his cabinet with a simple majority vote and then the President and the cabinet must resign. If a new President is not chosen within 30 days after a vacancy occurred, a new election must be held within 90 days.
If a vote of no confidence is passed in the President and his cabinet and they resign, the Speaker will be sworn in as the acting President until a new President is elected (within 30 days) from among the members of the National Assembly or until an election is held 90 days later later.
At the moment Mr Zuma is not a member of the National Assembly. As I read the Electoral Act, it is impossible for Mr Zuma to become a member of the National Assembly before the next election. It has been argued that Mr Zuma can become a member of the National Assembly if one of the ANC MPs resigns. But if there is such a resignation the vacancy must be filled from the existing list of candidates prepared by the ANC, which they can only review once a year. At the moment this list can only be reviewed and supplemented each April and if Mr Zuma is not now on top of one of these lists he cannot be placed on top of such a list at this time.
If the ANC therefore removes President Mbeki in the next week or two, but chooses not to have an election immediately, Mr Zuma will not be able to become President before an election is held. One of the present members of the National Assembly (Baleka Mbete or Kgalema Motlanthe?) will then have to be elected President until an election is held before the end of June next year.
So if Mr Malema is correct, we might either have an early election or we will have a caretaker President elected from among the existing ANC members of the National Assembly. If the latter rout is taken, it will be interesting to see who the ANC chooses in this role. Will it be the Speaker or will it be the Deputy President of the ANC? If it is the former, it might well indicate that there are already tensions between various Zuma factions elected at Polokwane and that some in the Zuma camp do not trust Motlanthe.
I am holding my breath to see what will happen. Whatever happens though, we are in for an interesting ride.
AFTERTHOUGHT: There is of course a very good reason why Mr Zuma chose not to become a member of Parliament along with Kgalema Motlanthe in April when the ANC had the opportunity to supplement its lists of candidates. The Court found in the Shaik case that the money given by Shaik to Zuma was not a loan as Mr Zuma and Mr Shaik had claimed. This money was a gift and Mr Zuma was obliged to declare this gift to Parlaiment which he failed to do. If he became an MP the ethics committee of Parliament would have to deal with this breach of ethics and with the fact that Mr Zuma had lied to Parliament.BACK TO TOP