OPINION: Zuma fate in hands of NEC

PRESIDENT Jacob Zuma’s political future depends on the balance of forces within the ANC national executive committee.

While interesting legal questions arise about whether Speaker Baleka Mbete or the members of the National Assembly can insist on a secret ballot when a vote of no confidence against Zuma is considered (they can), obsessing about these technicalities is a distraction.

The faction that controls the NEC controls the ANC (in between elective conferences) and, in turn, controls the ANC caucus in parliament.

Earlier this week I tweeted: “On what basis do people predict the demise of President Zuma? Has anyone counted the votes in NEC or in ANC caucus for and against ?”

Section 25.21.9 also allows the NDC to order the cancellation or suspension of the deployment of a public representative. In other words, it allows the NDC (should it find the president guilty of a breach of the offences listed in the constitution) to “recall” him – or the deputy president – from office, in which case the president would have to resign. If he refuses, the ANC would then instruct its MPs in the National Assembly to pass a vote of no confidence, forcing him to step down.

The same rule allows the NDC to remove a public representative from any list or instrument where such a person is entitled to represent the ANC at any level of government. This means the NDC has the power to fire any MP found guilty of a breach of the disciplinary rules of the party.

The list of offences that allow the NDC to act are extensive and sufficiently vague to allow for removal for what would amount to political reasons. Their vague, open-ended nature made it easy to expel Julius Malema from the ANC. The list includes:

• Failing, refusing or neglecting to execute or comply with any ANC policy, standing order, rule, regulation or resolution adopted or made in terms of this constitution or breaching the provisions of the ANC constitution;

• Behaving in a manner or making any utterance which brings or could bring or has the potential to bring or as a consequence thereof brings the ANC into disrepute;

•Behaving in a manner which provokes or is likely to provoke or has the potential to provoke division or impact negatively on the unity of the ANC;

• Participating in any organised factional activity that goes beyond the recognised norms of free debate inside the ANC and which threatens its unity;

• Prejudicing the integrity or repute of the organisation, its personnel or its operational capacity by: impeding the activities of the organisation; creating divisions within its ranks or membership; doing any other act which undermines the ANC’s effectiveness as an organisation; or acting on behalf of or in collaboration with: counter-revolutionary forces; a political organisation or party other than an organisation or party in alliance with the ANC in a manner contrary to the aims, policies and objectives of the ANC; and

•In the case of a member of an ANC caucus, failing, refusing or neglecting to carry out or execute an instruction or mandate of such caucus.

This means any ANC member (including the president) can easily be removed from office by the NDC or expelled. Also, that any ANC MP can easily be removed from his or her position as MP by the NDC if such an ANC MP, say, votes in favour of a vote of no confidence in Zuma in a situation where the NEC and/or the ANC caucus has decided not to support such a vote.

For this reason, it is highly unlikely that ANC MPs will vote with opposition parties to remove Zuma unless this is explicitly or implicitly sanctioned by the ANC NEC.

Notably, in terms of section 12.2.3 of the ANC constitution the NEC has the power to “upervise and direct the work of the ANC and all its organs, including national, provincial and local government caucuses”. In effect, the ANC NEC can instruct the ANC caucus to take a certain position on an important issue and if individual MPs fail to heed the instruction, they can be removed if found guilty by the NDC.

But can the NEC “recall” Zuma as president of the country, even in the absence of an instruction to that effect by the NDC?

I suspect it does have the power to do so.

The NEC recalled President Thabo Mbeki from office, so a precedent has been set, although in that case Mbeki was no longer the president of the ANC.

But as there is no explicit provision in the ANC constitution that regulates either the removal of an incumbent office-bearer (including the president of the ANC) from office or the “recall” of the president or deputy president of the country, I suspect the NEC has the residual power to do so, even in the absence of an NDC finding.

Section 12.2.12 of the ANC constitution seems to confirm this as it empowers the NEC to “institute disciplinary proceedings against any member and temporarily suspend the membership of any member”. This is confirmed by section 25.56 which says the NEC may, at any stage prior to the commencement of disciplinary proceedings summarily suspend the membership of such a member, office-bearer or public representative in accordance with the rules.

This means the NEC can suspend Zuma as president of the ANC, which would mean the Polokwane conference resolution that the president of the ANC shall be the ANC candidate for president of the country, would not stand in the way of his recall as president of the country.

Interestingly, section 25.70 has a provision that might be of some worry to Zuma: “Where a public representative, office-bearer or member has been indicted to appear in a court of law on any charge, the secretary-general…, acting on the authority of the NEC, if satisfied that the temporary suspension of such public representative, office-bearer or member would be in the best interest of the organisation, may suspend such public representative, elected office bearer or member and impose terms and conditions to regulate their participation and conduct during the suspension.”

This means if Zuma loses his appeal bid in the spy tapes case and the original corruption charges against him rise, so to speak, from the dead, Gwede Mantashe will be empowered, on the authority of the NEC, to recall Zuma as president.

As I have tried to make clear, Zuma can easily be removed as president of the country if the NEC supports such a move. Similarly, any MP who acts against the instructions of the ANC (for example, by supporting a vote of no confidence in the president) can relatively easily be removed.

Curiously, there is nothing in the ANC constitution to stipulate how the NEC (or any other structure) can make binding decisions. Usually such an absence would mean the body is required to make a binding decision with a simple majority of 50% plus 1 of the votes. But there has been some suggestion that the NEC tends to take decisions by consensus or at least “sufficient consensus”. As far as I can tell this “rule” is not written down, so it is unclear whether it needs to be followed.

If the 50% rule applies, the situation (for both Zuma and potential rebel MPs will be precarious as the side which can muster more than 50% of the NEC’s support would be able to take swift action against their opponents, removing them from office and even expelling them from the party.

As MPs (as well as Zuma) can only be disciplined by the NDC if disciplinary procedures are instituted by the NEC, it is important whether such a decision can be taken with a simple majority or whether some form of consensus is required.

As I am not a politician, I will refrain from making any predictions about the fate of Zuma as president of the country.

But as I have illustrated, all that really matters when we consider his political future is whether the just over 100 members of the NEC have lost confidence in him. Put differently, all that matters is which of the two factions in the ANC has the ability to induce or threaten a sufficiently large number of NEC members to support its cause.

• Pierre de Vos is professor of constitutional law at UCT