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.
It is ironic that Reverend Frank Chikane now claims (in his book Eight Days in September: The Removal of Thabo Mbeki) that the removal by the ANC leadership of President Thabo Mbeki as President was akin to a coup d’état.
After all, Chikane loyally served President Thabo Mbeki through thick and thin: through his late night, Internet searches aimed at uncovering the “truth” about Aids (a “truth” peddled by crackpot Aids denialists); trough his undermining of Parliament when his enforcer, Essops Fables, forced the ANC members of Scopa to stop digging for dirt on the arms deal scandal engulfing the ANC; through his flouting of the constitutional provision that the National Director of Public Prosecutions had to act without fear, favour or prejudice (even when he needed to arrest an old Police Commissioner friend of the President) when he suspended Vusi Pikoli.
The claim is, of course, nonsense and has no basis in fact or law.
In his book, Chikane states several times that the removal of Mbeki was something close to a coup. On page 143 of his book he finally attempts to justify this extraordinary claim. He argues that given the 60%-40% support for Jacob Zuma and Thabo Mbeki at Polokwane, it was no forgone conclusion that 50% of the members of the National Assembly would have voted for a motion of no confidence in President Mbeki. He also states that the President could not have been removed legally and constitutionally from his post as President.
The Constitution, read with the Electoral Act, tells a different story. There are two provisions in the Constitution providing for the removal of a sitting President. Section 89(1) of the Constitution allows for the removal of a President on non-political grounds. It states that:
The National Assembly, by a resolution adopted with a supporting vote of at least two-thirds of its members, may remove the President from office only on the grounds of: (a) a serious violation of the Constitution or the law; (b) serious misconduct; or (c) inability to perform the functions of office.
So, where the President is convicted, say, of fraud and corruption, or where it is found that the President had misused his powers to protect a friend in an unlawful manner, or when the President had a stroke and could not speak anymore, then two-thirds of the members of Parliament could remove that President from office. These grounds are “objective” in the sense that Parliament would only be able to impeach a President in this way if some factual basis existed to justify the removal.
But this is not the only provision allowing for the removal of the President from his or her position. Section 102(2) of the Constitution allows for the “political” removal of a President and states that:
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 provision relates to the system of Parliamentary government operating in South Africa. The President is elected by Parliament (the President is a member of Parliament for the few hours from his or her swearing in until his or her election after which he or she stops being a member of Parliament), all but two of the cabinet Ministers must also at all times be members of Parliament. This means that in theory the President and his or her cabinet must at all times retain the political confidence of the majority of members of Parliament. If the President loses this confidence, the majority can rely on section 102(2) and remove the President for any reason it wished.
Members of Parliament could therefore decide that they had stopped having confidence in the President, say, because the President had lost an internal party election or because he was supporting a neo-liberal economic policy or because he was unfriendly or because he was seen enjoying a drink with the leader of the opposition. It matters not what the reason is, if Parliament loses confidence in the President it can pass a vote by simple majority and that is the end of the President.
Now, in our system, with one party — the ANC – retaining more than 65% of the votes in the National Assembly, and with the imposition of strict party discipline on members of Parliament, the ANC could at any time instruct its MP’s to impose and vote for a vote of no confidence in the President.
If President Mbeki had refused to resign, he would have suffered the indignity of losing such a vote of no confidence. This is because every ANC member of Parliament would have been instructed to vote for the motion of no confidence. If they had refused, they would have been redeployed. If they had refused to be redeployed they would have been expelled from the ANC and would automatically have lost their seat in the National Assembly. They would then have been replaced with Jacob Zuma loyalists and that would have been the end of Mbeki. IF Mbeki refused to resign he would have been booted out in the most undignified way, so his agreement to resign was in his own interest.
There was therefore no way in which President Mbeki could have clung onto the Presidency once the ANC leadership had decided he had to go. That is the obvious consequence of our system of government and our electoral system, in which we vote for a party and not for individual MP’s who can make their own decisions and can defy the party leadership if they are brave enough. In South Africa defying the instructions from the party leaders is not brave, it is suicidal because one will eventually be kicked out of the party and out of Parliament, finish and klaar (as Mbeki’s crook of a friend used to say).
There was no coup d’état. There was nothing close to a coup. Instead there was a loss of political support for the President inside the ANC and like Tony Blair and Margareth Thatcher in the UK, he had to resign as a result of this. It is true that the ANC insisted on receiving a letter of resignation from the President, who insisted that the Speaker of the National Assembly had to receive this letter. It is also true that until the Speaker had been informed about the resignation it would not have had any legal effect. A letter sent by the President to his party signalling his intention to resign formally as President, would have calmed the waters, but it would not in itself have signalled his official resignation. All that was required from the President was to send another letter to the Speaker, something one assumes he was capable of doing.
Mbeki was no martyr. He was merely the victim of his decision to stand for a third term as ANC President so as to try and remote control the President of the country (a-la-Putin) while serving as leader of the ANC, something he would have been able to do for exactly the same political reasons his opponents were able to force him to resign: those who control the party, control the Presidency.
That is the way our system operates. This system is made worse by the fact that the way in which our Electoral Law is interpreted means that members of a political party can be redeployed to and from Parliament as the list of potential MP’s can be changed at various times during the life of the Parliament. Somebody can therefore be shifted from the Western Cape Provincial Parliament to the National Assembly and vice versa without too much trouble. This means that members of Parliament live in fear of their bosses. If you happen to be in the majority party (either nationally or in the provinces) those bosses are the very people you are constitutionally required to hold to account.
No wonder our national and provincial Parliaments are so weak and our Ministers and MEC’s often so imperious and arrogant. If we are talking about amending the Constitution, maybe this is where we should start.
We might think the system is anti-democratic or that it provides far too much power for party bosses and invites a blurring of the boundaries between the governing party and the state (which it clearly does), but until we change the Constitution (something the ANC will not do as it will weaken the extra-Parliamentary wing of the Party and will empower the Parliamentary wing of the party), there is nothing to be done about this.BACK TO TOP