These are the legal implications of the ANC’s National Executive deciding to “recall” President Jacob Zuma today. It was written by Professor Pierre de Vos in December last year.
A “recall” by the NEC (if it happens, and I am making no prediction on whether it will or not) would not in itself have any legal standing, as the President of the country is legally elected by the National Assembly (NA), not by the NEC. If the NEC “recalls” President Zuma, it would signal to Zuma that he has lost the support of the ANC – who is the majority party in the NA.
President Zuma would then have two options. He could recognise that the writing is on the wall and respond in the appropriate manner – as then President Thabo Mbeki did in 2008 – by resigning as President of the country. This option would be the least painful for the party as it would avoid a messy parliamentary process where the opposition parties could score political points. It would therefore also be the option in the best interest of the ANC.
The second option would be for President Zuma to dig in his heels and to refuse to resign. Legally, he is entitled to do so because – as I noted above – a decision by the NEC to “recall” him would not be legally binding. But if this comes to pass (once again, I have no idea whether it would or not), President Zuma will almost certainly lose the battle and will be fired as President.
If he is “recalled” and refuses to resign, the ANC would have to institute and support a vote of no confidence in him in the National Assembly (NA) in terms of section 102(2) of the Constitution. This section states:
If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.
This section is a logical counterpoint to section 86 of the Constitution which provides for the election of the President by the NA. As the President of the country is not directly elected by voters, but rather elected by the NA, he can also be removed from office by the NA in terms of section 102(2) if he loses the support of the majority of members of the NA.
Zuma would lose the support of the majority of NA members if he loses the confidence of the NEC and is asked by them to resign. This is because the ANC has a majority in the NA of over 60%. If the NEC “recalls” him and he refuses to resign, the NEC would then instruct the ANC caucus in the NA to institute and support a motion of no confidence in President Zuma and he would then, in effect, be fired as President of the country.
If President Zuma is not “recalled” as President of the country, it would send a signal to voters that the ANC supports Zuma and everything he has done during his term as President. It would also signal that the ANC stands by Zuma despite the fact that there is a legally binding decision by the National Prosecuting Authority (NPA) to charge him with various criminal offenses.
The ANC, for better or for worse, would then “own” Zuma come the 2019 election.
As in any other democracy, it would then be up to voters to decide whether this is a good or a bad thing, and whether they will vote for the ANC despite (or because of) the party’s support for Jacob Zuma.