Unelected President?

9 February 2018

In 1973, the Watergate Scandal broke, eventually costing United States of America’s President Richard Nixon his scalp in 1974. The Deputy President, Gerald Ford, was appointed, unelected, into the position, which he held for three more years. He holds the distinction as the only unelected President of the USA in the 20th Century. Back home, the Constitution contemplates such a scenario, albeit for a temporary period.

Specifically, section 90 of the Constitution governs the eventuality of an Acting President in circumstances where the President is “absent from the Republic or otherwise unable to fulfil the duties of President, or during a vacancy in the office of President”. Prior to assuming the office of the President, the Acting President “must swear or affirm faithfulness to the Republic and obedience to the Constitution”.

Thereafter, section 86(3) provides that “An election to fill a vacancy in the office of President must be held at a time and on a date determined by the Chief Justice, but not more than 30 days after the vacancy occurs.”

Read together, sections 90 and 86(3) therefore mean that an Acting President can only remain in that position for a period no longer than 30 days. It becomes incumbent on the National Assembly to elect a new President, after which the title ‘acting’ falls away and South Africa is again granted a ‘permanent’ President. The term ‘permanent’ is qualified in accordance with constitutional limits regarding the President’s tenure in office. Specifically, section 88(2) provides that “…but when a person is elected to fill a vacancy in the office of President, the period between that election and the next election of a President is not regarded as a term.” This leaves any such President free for re-election, with the Constitution placing a two-term limit.

While the nation ponders on the discussions held at Luthuli House and Tuynhuys, what is apparent is that should President Jacob Zuma resign, then the Deputy President, Cyril Ramaphosa, after having sworn an oath of office, will immediately occupy the office of the President. Albeit in an acting capacity, until the National Assembly elects one of their own to complete President Jacob Zuma’s remaining months in office. As to who is most likely to be elected post the acting President’s 30 days at the helm, perhaps that is best answered by political analysts who can predict the behavioural patterns of the rumoured factions within the majority party. In any event, the Presidential election is won by a simple majority vote. Perhaps it is this lack of certainty of the governing party winning 201 votes for their preferred candidate, given the widely reported fractures, which has led to the drawn-out process of President Jacob Zuma’s recall.

One would hasten to add too, that should the Economic Freedom Fighters-sponsored motion of no confidence - to be debated on 22 February - carry, then the President, the Deputy President, all Cabinet members, as well as any Deputy Ministers will all leave their offices. This leaves the Speaker of the National Assembly in a caretaker position at the helm of the nation’s highest office. The Speaker holds this position until the National Assembly elects a new President, within the 30-day constitutionally dictated time-frame. The same uncertainty within the governing party about securing the necessary 201 votes will apply.

Therefore, should President Zuma resign from the office, the Deputy President will, for at most 30 days, share Gerald Ford’s feat as an unelected President. The nub though, lies in the fact that such Acting President assumes the powers, functions and responsibilities of the President, including Cabinet appointments and granting pardons to offenders. Gerald Ford went on to grant Richard Nixon a Presidential Pardon “for any crimes which Richard Nixon may have committed against the United States while President.” Perhaps the comparison should end before such action on the part of the new South African President.

By Phephelaphi Dube, Director, Centre for Constitutional Rights, 9 February 2018