How to legally remove a president

MOIRA SCHNEIDER

So he told an audience at Limmud Cape Town at the weekend, when addressing “How to Lawfully Remove the President in South Africa”.

Katz’s practice at the Cape Bar involves a range of human rights issues, principally concerning international law and constitutional law and he has done much work for the various political parties over the last 10 years.

He said he was “surprised” at National Assembly Speaker Baleka Mbete’s decision to hold a secret ballot. “The parties were ready to go to court if she hadn’t, the papers had already been drawn up,” he noted.

His view is that Mbete decided on a secret ballot because her counsel warned her that she would lose the ensuing court case if she didn’t. “Whatever you may read in the Daily Maverick or anywhere else, nobody knew, (even President Jacob) Zuma didn’t know if it was going to be secret,” he maintained.

Katz outlined three broad ways in which a person stops being the president. Firstly, there is a term limit – the Constitution only allows for an individual to serve for two five-year terms.

Secondly, there is impeachment, which requires two thirds of the members of the National Assembly to vote for his removal on the grounds of serious violation of the Constitution (which the Constitutional Court has found in Zuma’s case); serious misconduct; and inability to perform in office.

Thirdly, there is a motion of no confidence, which succeeds if the National Assembly has lost confidence in the president and his government. “You introduce a no-confidence motion because you know that you’re not going to succeed with impeachment, as you need two thirds (of MPs to vote in favour),” said Katz.

In the case of impeachment, the President is removed but the Cabinet continues, with the deputy president stepping in for 30 days until a new president is elected.

In the case of a motion of no-confidence, the whole Cabinet must resign, including the deputy president, with the Speaker acting as president for 30 days until the National Assembly can elect a new president.

Failure to elect a president in both cases, will result in a general election.