Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
19 December 2017

On recalling Jacob Zuma as President of South Africa

President Jacob Zuma has now ended his two terms as President of the African National Congress (ANC), and Cyril Ramaphosa (not perceived to be a great fan of Zuma) has been elected as the new President of the ANC. Would it now be possible to remove President Zuma as President of the country before his term ends in 2019? And what happens if he is asked to resign and he refuses to do so?

When then President Thabo Mbeki was “recalled” from the Presidency of the country by the newly elected ANC leadership in 2008 after he lost the ANC leadership election to Jacob Zuma, some Mbeki supporters argued that this “recall” by the National Executive Committee (NEC) of the ANC was “tantamount” to a coup d’état.

I never understood this argument because in terms of the South African Constitution, with is parliamentary system of government, the President of the country must retain the support of the majority party in Parliament. Once the President loses the support of the majority party in Parliament, it becomes practically impossible for him or her to continue to serve as President of the country.

This means that President Zuma will have to be “recalled” (or will have to resign voluntarily) if he loses the support of the newly elected leadership of the ANC. At the time of writing it is unclear whether this will happen as the election results for the new NEC is still pending.

What we do know is that the “top six” is split down the middle between individuals who are perceived to be loyal to Ramaphosa and those perceived to be loyal to Zuma. We also know that some of the newly elected members of the “top six” are not people who believe as a matter of principle that Jacob Zuma’s involvement in state capture is a bad thing.

Ndifuna Ukwazi’s Zackie Achmat described the problem to Daily Maverick in rather scathing terms.

We have three gangsters, one suspect, and a president who is prisoner of a Top Six that is clearly compromised. If the rest of the NEC is anything like the Top Six, Ramaphosa won’t be able to clean up anything.

Of course, in politics, loyalty is not automatic, and not necessarily permanent. It is a commodity that can easily be traded for some or other political or personal advantage, and politicians may well ditch a leader if they believe continuing to be loyal to a politically tainted colleague could lead to a loss of power and influence.

But if we assume that NEC members will more or less stay loyal to the faction that they have supported until now, there are two situations in which it will become possible to “recall” President Zuma.

The first is if the overwhelming majority of newly elected NEC members are loyal to Cyril Ramaphosa. The second is if the newly elected NEC concludes that it is necessary to remove President Zuma in order to ensure an electoral victory in the next national election in 2019.

Some analysts believe that this is indeed the case. Eusebius McKaiser, writing for Foreign Policy after the election of the “top six”, boldly writes that:

Ramaphosa has little chance of winning the 2019 elections for the ANC if Zuma remains in power until then, and he has so far been silent on the question of whether Zuma should be recalled. That plays into the hands of opposition parties, which have tapped into the frustrations of many ANC supporters by being more blunt about Zuma’s unfitness to rule.

I have no idea whether this is correct, as I am not a political analyst and do not know how voters will react over the next 18 months. But for the second option to be considered by the new NEC, what is required is for the new NEC to believe that it stands to lose electoral support if it does not “recall” Jacob Zuma as President of the country and then to act on such a belief.

Such a belief (if it takes root in the NEC, which is not a foregone conclusion), might of course be trumped by an even stronger perceived threat, namely a threat that the party might split if President Zuma is recalled. Counter-intuitively, the NEC may also believe that the ANC would fare worse at the next election if it fired President Zuma.

A “recall” by the NEC (if it happens, and I am making no prediction on whether it will or not) would not in itself have any legal standing, as the President of the country is legally elected by the National Assembly (NA), not by the NEC. If the NEC “recalls” President Zuma, it would signal to Zuma that he has lost the support of the ANC – who is the majority party in the NA.

President Zuma would then have two options. He could recognise that the writing is on the wall and respond in the appropriate manner – as then President Thabo Mbeki did in 2008 – by resigning as President of the country. This option would be the least painful for the party as it would avoid a messy parliamentary process where the opposition parties could score political points. It would therefore also be the option in the best interest of the ANC.

The second option would be for President Zuma to dig in his heels and to refuse to resign. Legally, he is entitled to do so because – as I noted above – a decision by the NEC to “recall” him would not be legally binding. But if this comes to pass (once again, I have no idea whether it would or not), President Zuma will almost certainly lose the battle and will be fired as President.

If he is “recalled” and refuses to resign, the ANC would have to institute and support a vote of no confidence in him in the NA in terms of section 102(2) of the Constitution. This section states:

If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.

This section is a logical counterpoint to section 86 of the Constitution which provides for the election of the President by the NA. As the President of the country is not directly elected by voters, but rather elected by the NA, he can also be removed from office by the NA in terms of section 102(2) if he loses the support of the majority of members of the NA.

Zuma would lose the support of the majority of NA members if he loses the confidence of the NEC and is asked by them to resign. This is because the ANC has a majority in the NA of over 60%. If the NEC “recalls” him and he refuses to resign, the NEC would then instruct the ANC caucus in the NA to institute and support a motion of no confidence in President Zuma and he would then, in effect, be fired as President of the country.

If President Zuma is not “recalled” as President of the country, it would send a signal to voters that the ANC supports Zuma and everything he has done during his term as President. It would also signal that the ANC stands by Zuma despite the fact that there is a legally binding decision by the National Prosecuting Authority (NPA) to charge him with various criminal offenses.

The ANC, for better or for worse, would then “own” Zuma come the 2019 election.

As in any other democracy, it would then be up to voters to decide whether this is a good or a bad thing, and whether they will vote for the ANC despite (or because of) the party’s support for Jacob Zuma.

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