Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
5 April 2017

Removal of President Zuma: What counts is who controls the ANC NEC

President Jacob Zuma’s political future depends on the balance of forces within the African National Congress (ANC) National Executive Committee (NEC). While interesting legal questions arise about whether Speaker Baleka Mbete or the members of the National Assembly (NA) can insist on a secret ballot when a vote of no confidence against President Zuma is considered (they can), obsessing about these technicalities is a distraction. The faction who controls the NEC controls the ANC (in-between elective conferences) and, in turn, controls the ANC caucus in Parliament.

Earlier this week I tweeted: “On what basis do people predict the demise of President [Jacob] Zuma? Has anyone counted the votes in NEC or in ANC caucus for and against [his removal from office]?” This question seems even more relevant after the patronage faction aligned to President Zuma seemed to have prevailed in a meeting of the ANC’s National Working Committee earlier this week.

The Constitution of the ANC, adopted at its 2012 conference at Mangaung, affirms that the NEC “is the highest organ of the ANC between National Conferences and has the authority to lead the organisation, subject to the provisions of this Constitution”. The NEC also retains residual power to take any decision which is not specifically prohibited by the ANC Constitution.

This much is clear from section 12.2 of the ANC Constitution which prefaces the list of powers bestowed on the NEC with the words “[w]ithout prejudice to the generality of its powers”.

This means that unless the ANC Constitution bestows exclusive powers on another body – such as the powers bestowed on the National Disciplinary Committee (NDC) to discipline members of the organisation – in-between elective conferences the NEC can take any decision that it deems necessary to advance the interests of the organisation. Section 12.2.20 of the Constitution makes this clear as it states that the NEC shall:

Take all steps necessary or warranted for the due fulfilment of the aims and objectives of the ANC and the due performance of its duties.

While section 12.3 of the Constitution regulates the election of the top six leaders of the ANC and the rest of the NEC, the Constitution does not provide for the removal of any of the top 6 leaders or other NEC members from office – except through a disciplinary process.

Neither does it provide for the “recall” of the President of the ANC as President of the country. Moreover, in 2007 at the Polokwane elective conference the ANC adopted a resolution that: “the ANC President shall be the candidate of the movement for President of the Republic”.

Section 25.21.8 of the ANC Constitution does allow the NDC to remove any ANC office bearer (say, the President, Secretary General or Treasurer) from office or to suspend such an office bearer if found guilty of any contravention of the rules of the organisation.

Section 25.21.9 also allows the NDC to order the cancellation or suspension of the deployment of a public representative. In other words, it allows the NDC (after finding him guilty of a breach of the offences listed in the Constitution) to “recall” the President – or the Deputy President for that matter – from office, in which case the President would have to resign. If he refuses to resign, the ANC would then instruct its MPs in the NA to pass a vote of no confidence in the President, forcing him to step down.

The same rule also allows the NDC to remove a public representative from any list or instrument which entitles such person to represent the ANC at any level of government. This means the NDC also has the power to fire any member of Parliament if he or she is found guilty of a breach of the disciplinary rules of the party.

The list of offences which would allow the NDC to act are extensive and are also sufficiently vague to allow for the removal for what would amount to political reasons. (The vague and open-ended nature of the offences, in fact, made it easy to expel Julius Malema from the ANC after he turned against President Zuma. The list includes:

  • Failing, refusing or neglecting to execute or comply with any ANC Policy, Standing Order, Rule, Regulation or Resolution adopted or made in terms of this Constitution or breaching the provisions of the ANC Constitution;
  • Behaving in a manner or making any utterance which brings or could bring or has the potential to bring or as a consequence thereof brings the ANC into disrepute;
  • Behaving in a manner which provokes or is likely to provoke or has the potential to provoke division or impact negatively on the unity of the ANC;
  • Engaging in sexual or physical abuse of women or children or abuse of office to obtain sexual or any other undue advantage from members or others;
  • Abuse of elected or employed office in the Organisation or in the State to obtain any direct or indirect undue advantage or enrichment;
  • Participating in any organised factional activity that goes beyond the recognised norms of free debate inside the ANC and which threatens its unity;
  • Prejudicing the integrity or repute of the Organisation, its personnel or its operational capacity by: impeding the activities of the Organisation; creating divisions within its ranks or membership; doing any other act which undermines the ANC’s effectiveness as an organisation; or acting on behalf of or in collaboration with: counter-revolutionary forces; a political organisation or party other than an organisation or party in alliance with the ANC in a manner contrary to the aims, policies and objectives of the ANC; and
  • In the case of a member of an ANC Caucus, failing, refusing or neglecting to carry out or execute an instruction or mandate of such caucus.

This means that any ANC member (including the President) can easily be removed from office by the NDC or can even be expelled from the party. It also means though that any ANC MP could easily be removed from his or her position as MP by the NDC if such an ANC MP, say, votes in favour of a vote of no confidence in President Zuma in a situation in which the NEC and/or the ANC caucus has decided not to support such a vote.

For this reason, it is highly unlikely that ANC MPs will vote with opposition parties to remove President Zuma from office in a vote of no confidence – unless this is explicitly or implicitly sanctioned by the ANC NEC.

Notably, in terms of section 12.2.3 of the ANC Constitution the NEC has the power to “[s]upervise and direct the work of the ANC and all its organs, including national, provincial and local government caucuses”. In effect, the ANC NEC can instruct the ANC caucus to take a certain position on an important issue (including on how to vote in a motion of no confidence) and if individual MPs fail to heed the instruction, they can be removed as MPs if found guilty by the NDC.

Moreover, section 5.4 of the ANC Constitution emphasizes that MPs are not free agents, stating that:

ANC members who hold elective office in any sphere of governance at national, provincial or local level are required to be members of the appropriate caucus, to function within its rules and to abide by its decisions under the general provisions of this Constitution and the constitutional structures of the ANC.

But can the NEC “recall” President Jacob Zuma as President of the country – even in the absence of an instruction to that effect by the NDC? I suspect that it does have the power to do so.

The NEC already recalled President Thabo Mbeki from office, so a precedent has been set, although in that case Mbeki was no longer the President of the ANC.

But as there is no explicit provision in the ANC Constitution that regulates either the removal of an incumbent office bearer (including the President of the ANC) from office or the “recall” of the President or Deputy President of the country from office, I suspect that the NEC has the residual power to do so – even in the absence of a finding by the NDC.

Section 12.2.12 of the ANC Constitution seems to confirm this as it empowers the NEC to “institute disciplinary proceedings against any member and temporarily suspend the membership of any member”. This is confirmed by section 25.56 of the Constitution which states that the NEC may, at any stage prior to the commencement of disciplinary proceedings against a member, office bearer or public representative, summarily suspend the membership of such member, office bearer or public representative in accordance with the rules set out in the Constitution.

This means the NEC can suspend Zuma as President of the ANC, which would mean the Polokwane conference resolution that the President of the ANC shall be the ANC candidate for President of the country, would not stand in the way of his recall as President of the country.

Interestingly, section 25.70 contains a provision that might be of some worry to President Zuma. It states as follows:

Where a public representative, office-bearer or member has been indicted to appear in a court of law on any charge, the Secretary General…, acting on the authority of the NEC, if satisfied that the temporary suspension of such public representative, office bearer or member would be in the best interest of the Organisation, may suspend such public representative, elected office bearer or member and impose terms and conditions to regulate their participation and conduct during the suspension.

This means that if President Zuma loses his appeal bid in the Spy Tapes case and the original corruption charges against him rise, so to speak, from the dead, Gwede Mantashe will be empowered, on the authority of the NEC, to recall President Zuma as President.

As I have tried to make clear, President Zuma can easily be removed as President of the country if the NEC supports such a move. Similarly, any MP who acts against the instructions of the ANC (for example, by supporting a vote of no confidence in the President) can also relatively easily be removed from his or her position as MP.

Curiously, there is nothing in the ANC Constitution to stipulate how the NEC (or any other structure of the party) can make binding decisions. Usually an absence of such a stipulation in the Constitution of an organisation would mean that the body would be required to make a binding decision with a simple majority of 50% plus 1 of the votes. But there has been some suggestion that the NEC tends to take decisions by consensus or at least “sufficient consensus”. As far as I can tell this “rule” is not written down, so it is unclear whether it needs to be followed.

If the 50% rule applies, the situation (for both President Zuma and for potential rebel MPs) will be precarious as the side who can muster more than 50% of the support in the NEC would be able to take swift action against their opponents, removing them from office and even expelling them from the party. As MPs (as well as President Zuma) can only be disciplined by the NDC if disciplinary procedures are instituted by the NEC, it is rather important whether such a decision can be taken with a simple majority or whether some form of consensus is required.

As I am not a politician, nor somebody who wishes to make predictions unsupported by any facts, I will refrain from making any predictions about the fate of President Zuma as President of the country.

But as I hopefully illustrated, all that really matters when we consider the political future of President Zuma is whether the just over 100 members of the NEC has lost confidence in President Zuma or not. Put differently, all that matters is which of the two factions in the ANC has the ability to induce or threaten a sufficiently large number of NEC members to support its cause.

Maybe it is time for journalists and political commentators to start counting the support for the pro- and anti-Zuma factions inside the NEC.

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