Last Friday I watched the 2007 film, “The Color of Freedom,” rechristened “Goodbye Bafana.” It is the intriguing story of the imprisonment of Nelson Mandela and his inter-action with his jailer, James Gregory. To my surprise, I found myself in tears several times, moved by the nobility of which some human beings are capable. This set me to thinking about the presidency of South Africa and the battle being waged against the present incumbent.
Some people disapprove of the election of our presidents by parliament instead of directly by the people. I totally disagree. As one of those who helped draw the constitution I can say that we felt that there were too many “big men” in Africa. Presidents with their own mandate are more independent and are not answerable to parliament and the representatives of the people. Even though we had someone of the calibre of Nelson Mandela we did not want him and his successors to be able to ignore parliament. Our country did not need a “big man.”
Presidents elected by the people are not subject to votes of no confidence or “recall” as was done by the ANC to President Mbeki. Directly elected presidents generally can be removed, to use the American term: “for high crimes and misdemeanors” by impeachment. In the United States only two presidents have ever been impeached, Andrew Johnson in 1868 and Bill Clinton in 1998. Both impeachments failed and the president continued in office.
Our constitution does provide for the removal of a president, but requires a two thirds majority of MPs and then only on the grounds of a serious violation of the Constitution or the law; serious misconduct, or inability to perform the functions of office. A president whose party has a majority in parliament really need not consider the possibility of being impeached. This was how President Zuma escaped impeachment even though found by our Constitutional Court to have violated the Constitution.
A motion of no confidence in the president is a much simpler and more effective procedure needing only a simple majority. That is what President Zuma will face on 8 August. Or that is the drama that most of South Africa expects will be tested in Parliament that day. I do not expect the No Confidence motion to proceed then or any time soon.
The Rules of Parliament do not provide for a secret ballot of members on motions of this type. In response to a clamour from the media, some of the political parties and many members of the public, one of the parties applied to Court for an order instructing the Speaker to arrange for a secret ballot.
The elegant and rather dextrous judgment delivered by Chief Justice Mogoeng Mogoeng enjoined the Speaker to exercise the powers she has and to decide for or against a secret ballot, but only on rational grounds. She has still to announce her decision. Both the ANC and the DA have said they will abide by her decision but many of the smaller parties are adamant that the vote must be secret so that MPs can “follow their consciences.” The expectation is clearly that MPs will not vote with their consciences unless they can do so in secret, free of any adverse consequences if they defy their party whips and vote against the leader of their party and contrary to the decision of their caucus.
The Speaker is in the exquisite position of having major, and in my view, insoluble conflicts of interest. She is not only the Speaker, she is also the National Chairperson of the ANC and she is a declared aspirant for the leadership of her party and for the presidency of South Africa. Perhaps more significantly, given her aspirations, the Constitution provides that if the motion of no confidence is carried, the president, the deputy president and the whole cabinet must resign. The Speaker becomes the acting president – a mouth watering prospect for an aspiring president. Surely, she cannot act impartially in these circumstances. The Opposition is absolutely right in requesting the Speaker to recuse herself.
Knowing the lady, I predict she will not recuse herself. She will calculate carefully what will be in the interests of her candidacy. With one exception only, I am sure she will give in to the pressure from President Zuma and the ANC hierarchy and decree an open vote. This would result in a failure of the motion because not many ANC MPs believe that an open and proud conscience vote is the right thing.
The exception is if she believes the motion will be carried in a secret ballot; she might then defy the president and opt for secrecy because that would open the way for her ambitions, avoiding having to discipline fifty or sixty rebel ANC MPs whose identities would thus remain secret.
I happen to believe that even if a secret ballot takes place, the motion will fail because not nearly enough ANC MPs, many of them happy trough-feeders, will wish to disturb matters by voting against their own man in favour of an opposition motion. They have watched the corruption and the maladministration for years and remained silent. Most of them will continue going with the flow.
The moment Speaker Mbete announces that the ballot will be open, she will be taken to Court and months will elapse before we have a judgment. My view is that President Zuma will remain president of South Africa at least until after December when he ceases to be the leader of the ANC. Perhaps he will be tolerated for a while thereafter by whoever succeeds him in the ANC. At least he cannot remain on after the 2019 election. The only good news is that the prospect of an Acting President Mbete, let alone President Mbete, is remote.
Douglas Gibson is a former opposition chief whip and a former ambassador to Thailand
This article first appeared in The Star.