20/11/2016 09:33 SAST | Updated 21/11/2016 10:32 SAST

How To Get Rid Of A President In Two (Not So) Easy Steps

Sorry, Democratic Alliance. A vote of no confidence just will not cut it.

Thabo Mbeki was recalled by the ANC before his term of office ended. The governing party is wary to go down the same route with Jacob Zuma.

Buyer's remorse a terrible thing, but at least when you've bought something at a local store you can return it - in the case of a new head of state, not so much. And unless you're planning an insurrection, a hard slog in the muddy political trenches of lobbying and organising is the only reasonable option.

Democracy of course isn't a perfect system, but its quirks and idiosyncracies cuts both ways. Presidents are safe as long as they don't break the law or lose the support of their parties. But sooner or later all presidents do one or the other, or both.

The Head of State in South Africa is chosen from among Members of Parliament in the National Assembly (NA) at its first sitting after a ratified election. Constitutionally, they elect him and only they can remove him. Reality is, however, much different.

Former ANC President and Head of State Thabo Mbeki vacated his office in the Union Buildings in September 2008, even though his tenure was not finished, and even though there was no constitutional or legal imperative to do so. Party discipline and internal wranglings proved to be undoing, with narrow interests trumping the national interest and resulting in him being recalled.

President Jacob Zuma, his influence much diminished and under increasing political pressure, is in a much stronger position and with more support within the party than Mbeki hat this stage during his term, and will be a lot more difficult to remove.

Constitutional option

The Constitution provides clear prescripts for the removal of a president: two thirds of MP's in the NA must pass a motion of no-confidence.

But it is not so clear what the exact grounds for removal are. According to Article 89 (1) grounds include:
(a) a violation of the Constitution or the law;
(b) serious misconduct; or
(c) an inability to perform functions of the office.

Subsections A and C are clear enough: break the law or suffer a stroke and removal is warranted. Subsection B is a poser: what entails serious misconduct? Bringing the office of head of state into disrepute? Being charged with corruption? Violating the Constitution, like the highest court in the land found Zuma did in March?

An internal revolt

Even though the president is chosen from among and by elected public representatives, it has always been the governing party that decides who the president is -- this was the case with the National Party pre-1994, when its Parliamentary caucus decided, and ever since the ANC won its first general election, with the National Executive Committee (NEC) giving the nod.

This means it is the party's leadership that decides who to deploy to the presidency and renders the constitutional process a formality.

The only way in which a sitting head of state can therefore be removed is if the party decides, via the NEC, to boot him. It is unclear if there are set procedures within the NEC that guide this (the ANC's constitution is silent on the matter).

It is a dangerous course of action though: if the incumbent decides to defy the NEC (which legally and technically is his right), the constitutional option is the only one left. And without a two-thirds majority, it will be risky business.