Although I will be surprised – shocked even – if the vote of no confidence against President Jacob Zuma succeeds (even if the Speaker orders a secret ballot), the possibility nevertheless raises many fascinating constitutional law questions. Over the past few days many claims and counter-claims have been made about the ordering of a secret or open ballot and what would happen if a motion of no confidence succeeds. Not all of these claims are true. Although I am well aware that these issues are unlikely to arise, I am fascinated by the constitutional issues raised. In what follows I look at some of these claims and explain to what extent they are true or false.

Claim 1: Passing a vote of no confidence against the President is undemocratic and will subvert the will of the voters.

Answer: Mostly false.

South Africa has a parliamentary system of government, which means the President and his or her executive is legally required to retain the support (or, as the Constitution calls it, the confidence) of the majority of members of the National Assembly (NA). Section 102(2) of the Constitution thus allows members of the NA to pass a vote of no confidence against the President if the President has lost the support of the majority of members of the NA.

The argument is that MPs of the majority party should not be free to support a vote of no confidence in the President or should face consequences from their party if they do, as voters elected their party into office and knew who the leader of the party was when they did so. According to this argument, voters did not elect individual MPs into office, meaning MPs are obliged to follow the instructions of their party and should not hold the President or other members of the executive accountable as long as they are instructed by their party not to do so.

In the United Democratic Movement v Speaker of the National Assembly and Others judgment (the secret ballot judgment) the Constitutional Court held that MPs first and foremost represent the people and not their parties. Chief Justice Mogoeng claimed, rather optimistically, that MPs were “elected through their parties to represent the people” to “enable the people to govern through them, in terms of the Constitution”. He then continued:

“The requirement that their names be submitted to the Electoral Commission before the elections is crucial. The people vote for a particular party knowing in advance which candidates are on that party’s list and whether they can trust them.”

It is debatable whether this claim is true. Most of us are not intimately familiar with the names of party members that appear on an electoral list. Nor do most of us decide which party to vote for by perusing the electoral list of each party.

Be that as it may, at the heart of this debate is the question of whether it is more democratic (in a system with pure proportional representation) for political power to reside largely with the extra-Parliamentary wing of the governing party (whose leaders were elected by 4,500 people) or with the Parliamentary wing of the party (who were elected by more or less 20-million people).

Allowing MPs a free (and perhaps secret) vote to hold the President and executive accountable, partly shifts power away from the unelected extra-parliamentary wing of the party towards the elected Parliamentary wing of that party. One could therefore at least make a reasonably plausible argument that allowing MPs to hold a president accountable by voting him out of office, enhances democracy, rather than subvert it

Claim 2: Passing a vote of no confidence in the President will collapse the government and create chaos.

Answer: Partly true and partly false.

If a vote of no confidence is successful the President and the entire Cabinet will have to resign. The Speaker becomes acting president. The NA must (within 30 days) elect a new president from among its members. A new president would thus need the support from the majority of members of the NA. This means the new president will have to be from the governing party as other parties could never muster a majority. He or she could re-appoint most of the cabinet ministers who served in the Zuma cabinet. The same party remains in government – much like it did when president Thabo Mbeki was “recalled” as president.

In this sense, it is false to claim that the government will collapse and that there will be governmental chaos.

But passing a vote of no confidence may create chaos within the governing ANC. This is because the ANC will have to decide who to vote into office as new President. If the extra-Parliamentary leadership of the party (the ANC National Executive Committee) nominates one candidate (say, Baleka Mbete – Nkosazana Dlamini-Zuma could not be elected because she is not currently a member of the NA) but many members of the Parliamentary wing of the party backs another candidate (say Cyril Ramaphosa), this could lead to instability and even open warfare within the party.

Although this is unlikely, the majority of MPs could decide to defy the NEC and could vote for Cyril Ramaphosa as president. In terms of Schedule 3 of the Constitution, the vote for president must be by secret ballot, which means ANC MPs who defy the NEC may enjoy some protection and it may be more difficult to act against them if they defy an instruction of the NEC on who to vote for. What this means is that chaos may ensue, not because the President was dismissed through a vote of no confidence (such votes of no confidence occur regularly across the world in parliamentary democracies), but because of factionalism within the governing party.

Claim 3: If a vote of no confidence is passed, the Speaker will delay the vote to elect a new President, which would allow ANC MPs to be removed and replaced by supporters of Jacob Zuma.

Answer: False.

Section 86(3) of the Constitution states 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.” The Speaker can therefore not delay the vote as she does not schedule it.

It is also not as easy to remove MPs and replace them with loyal members as the statement above suggests. Normally MPs will obey an instruction of their party to resign as MPs because if an MP refuses to do so, the party will eventually be able to remove the MP as a member of the NA. But this will take several months or even years.

In terms of section 47(3)(c) of the Constitution, a person loses membership of the NA if that person “ceases to be a member of the party that nominated that person as a member of the Assembly”. This means that MPs who refuse to resign despite being instructed to do so by their party can be removed but only by expelling those MPs from the party.

The ANC Constitution provides for the disciplining of ANC members and also – in extreme cases – for their expulsion from the party. But this can only happen after a person was found guilty by the National Disciplinary Committee (currently chaired by Derek Hanekom) and only after an appeal to the National Disciplinary Committee of Appeal has been unsuccessful.

The ANC Constitution does not provide for summary expulsion from the party and if it attempted to expel ANC MPs who supported a vote of no confidence without following the procedures prescribed by its Constitution, a court could review and invalidate that expulsion, allowing the MP to continue serving in the NA for several months.

Given the Constitutional Court dicta in Ramakatsa and Others v Magashule and Others that the Constitutions of political parties must comply with the South African Constitution, and given the fact that the UDM judgment could arguably be read as prohibiting political parties from removing MPs from the NA solely for choosing to obey the Constitution rather than the instructions of their party, ANC MPs against whom action is taken would also be able to approach the courts to challenge the expulsion. The process could drag on for years, during which time they would remain MPs.

So, unless ANC MPs willingly resign when instructed to do so, they could not be replaced by pro-Zuma MPs before a vote for a new president occurs.

Claim 4: If President Zuma is removed from office, he could be sworn in as an MP immediately and be re-elected as President.

Answer: This is improbable.

The President must be elected from among the members of the NA, but once elected he or she ceases to be a member of the NA. This means President Zuma is not currently a member of the NA. If he is removed he could not be re-elected as President unless he could be sworn in as an MP by the time the Chief Justice has scheduled a new vote for President. This could only happen if President Zuma was at the top of the ANC’s national or one of its provincial electoral lists and there was a vacancy in the NA.

Section 19 of Schedule 1A of the Electoral Act allows a political party to review its electoral list and to shuffle the order and add names to that list, but only once a year and within a specific seven day period. Otherwise a party cannot review and shuffle their electoral list in a manner that would allow President Zuma to be placed at the top of the list so that he could be sworn in as an MP in the event of a vacancy opening in the NA.

In terms of section 18 of Schedule 1A of the Electoral Act a party may add names at the end of the applicable list, if a vacancy has occurred and the appropriate list of candidates of the party concerned is depleted. This means the only way President Zuma could be sworn in as an MP is if he got a number of MPs from a province (equal to the number of names remaining of a provincial electoral list) to resign.

After they resign, ANC members on the current electoral list would then have to be sworn so that the names on the list is depleted. Then President Zuma could be added to the list. He would now be at the top of the provincial electoral list and if another MP from that province then also resigns President Zuma (who would now be first on the list) could be sworn in as an MP.

It is unlikely that this could be done within the limited period before the Chief Justice schedules an election to elect a new president. In any event, in terms of section 6 of Schedule 3 of the Constitution, the election of a new president must be conducted by secret ballot, so it is unlikely that the very MPs who would have passed a vote of no confidence in Zuma (and would not yet have been removed) would now vote to re-appoint him. DM