MOTIONS OF NO CONFIDENCE IN THE PRESIDENT - WHAT TO BEAR IN MIND

The official opposition political party has signaled its intention to introduce, in accordance with Parliament’s established Rules, a motion of no confidence in the President. This motion will be debated on 1 March 2016 by the National Assembly. The opposition party has cited the President’s decision to remove the Finance Minister, Nhlanhla Nene late last year - a decision which reportedly cost the economy R500 billion - as the driver for the decision to proceed with the motion. It is not the first time that the opposition party has attempted to have a no confidence resolution passed in the National Assembly.

No such attempt in South Africa’s constitutional democracy has ever succeeded, given that for the resolution to pass, the motion must be supported by a simple majority of the members of the National Assembly. Since the President is drawn from the ranks of the governing party whose members command the majority of the National Assembly, it is highly unlikely that these same members would support a motion of no confidence in their leader. This raises the obvious question as to whether Members of Parliament are beholden to their party bosses rather than to the Constitution.

Section 102(2) of the Constitution makes provision for the National Assembly by way of voting, to pass a motion of no confidence in the President. Should the majority vote be carried, then the President must resign. Parliament accordingly makes provision for such proceedings through its Rules.

A motion of no confidence must be differentiated from the removal of a President according to section 89 of the Constitution. The removal may take place by a resolution of the National Assembly adopted with a supporting vote of at least two-thirds of its members, and only on grounds of serious violation of the Constitution, serious misconduct or the inability to perform the functions of office. The President’s term of office may also end when such President no longer enjoys the support of the majority of members of the National Assembly.

Simply put, a motion of no confidence is a moral test, while the impeachment proceedings are a factual test. For example - should the Constitutional Court make an adverse finding against the President regarding his conduct where the law or the Constitution has been violated - then, arguably, this could constitute a factual ground for impeachment proceedings.

It is worth remembering that the executive authority of the nation is vested in the President, who in turn exercises this power together with the other members of the Cabinet.  A motion of no confidence adopted by the majority of the National Assembly would compel the President, members of Cabinet and deputy ministers to resign. As such, the President is both elected by and can be removed by the resolution of majority members of the National Assembly.

The Constitutional Court in Mazibuko v Sisulu has further stated that any member of the National Assembly has the right to formulate and request to have a motion of no confidence debated and voted for in the National Assembly. This is particularly important in light of Parliament’s duty to not only scrutinise and oversee executive action but also to provide a national platform for the public consideration of issues.

A motion of no confidence in the President is an important means through which democracy can be advanced. Importantly, section 102(2) underpins the foundational values of the Constitution enshrined in section 1 - since it involves democracy, transparency, accountability and openness. This is expected of a multi-party system of democratic governance - to ensure accountability, responsiveness and openness. This too has been highlighted by the Constitutional Court in the above case which stated that a “motion of this kind is perhaps the most important mechanism that may be employed by Parliament to hold the executive to account and to interrogate executive performance. This right is open to all members of the Assembly.”

Even where there is very little chance of success of a motion of no confidence, Parliament’s Rules may not deny, frustrate, unreasonably delay or postpone the exercise of the right.  When a member of, or a political party within the National Assembly, tables a motion of no confidence in terms of section 102(2) in accordance with the Rules, the relevant committee in Parliament is obliged to give serious and prompt attention to the motion. Steps should then be taken to ensure that the motion is tabled and voted on without unreasonable delay.

Since a motion of no confidence is a crucial constitutional entitlement, whether to debate a motion of no confidence in the President cannot be left to the whim of any political party in the National Assembly. Neither should the entitlement be at the discretion of any political party or any other committee of the Assembly.

It then follows that when the Constitution entitles a member or party to move a no confidence motion in the National Assembly, the Rules of Parliament should thereafter set out a procedure for the envisaged process. However, these procedures should not in any way derogate from the constitutional entitlement.

The advancement and deepening of constitutionalism requires that any motion of no confidence in the President be moved in accordance with the Rules of Parliament. Regardless of whether the resolution passes, the ensuing debate will ensure a more accountable and open system of governance.

Phephelaphi Dube is Legal Officer; Centre for Constitutional Rights.