Umkhonto weSizwe, the newest political party in South Africa (not to be confused with the now-defunct military wing of the ANC of the same name), is causing some consternation in some quarters and has the ANC in something of a tizzy.
Apparently caught unawares by the shenanigans of its former leader, the 112 year old movement finds itself between a rock and a hard place. Jacob Zuma has publicly announced that he will not be campaigning or voting for what he calls “Ramaphosa’s ANC” in what has been described as a clear breach of the ANC’s constitution. He is instead actively pushing the MK Party and the ANC is yet to react. Does it expel him and turn him into the perfect victim, vindicating his claims about how iANC ayisafani (the ANC is no longer the same); that it mistreats its own sons and daughters? Or does it let him do as he pleases, letting the chips fall where they may?
Honestly, who cares? As many have remarked over the last few days, this situation is entirely of the ANC’s own making: they took an already worn-out mattress and jumped up and down on it until its coil springs pierced through the worn fabric and are now being forced to lie on that very mattress, much to their own discomfort. Let them suffer.
Not much is known about this MK Party but if its social media content is anything to go by, it appears that Zuma will be the face of the party heading into the elections. Whether he will be its leader is separate question, since reports indicate that the question of leadership has been shelved for after the elections.
One thing for certain and two things for sure: (1) the MK Party is unlikely to win an election or to win a sizeable enough share of the vote to be a viable coalition partner, and (2) Zuma does not want to be an MP. Becoming an MP means forfeiting all of the perks that come with being a former President and the MP gig is just not worth it.
But let us assume for the sake of the argument that Zuma becomes the leader of the MK Party after the elections, and that by some miracle of a divine providence last seen in Damascus when Saul became Paul, the MK Party was able to cobble up enough votes to form a coalition government with Zuma as its leader. That would make him poised to be the next President of the Republic of South Africa.
Only one problem, though: he can’t.
Section 88(1) of the Constitution provides that ‘[t]he President’s term of office begins on assuming office and ends upon a vacancy occurring or when the person next elected President assumes office’. Section 88(2) on the other hand says that ‘[n]o person may hold office as President for more than two terms, but when a person is elected to fill a vacancy in the office of President, the period between that election and the next election of a President is not regarded as a term’.
The election of a President is by the National Assembly from within its members in terms of section 86(1) and once elected, the President ceases to be a member of the National Assembly and must be sworn into office within five days of that election in terms of section 87.
Now, let’s address the elephant in the room and the source of so many of Zuma and his supporters’ grievances: his arguably forced resignation. I tweeted something to the effect that Zuma was constitutionally disqualified from becoming President again and many people brought up the fact that he hadn’t completed five years or a ‘full term’ as President to suggest that he would still be eligible to occupy that office.
First, there is no such thing as a ‘full term’ for a President because a presidential term ends ‘upon a vacancy occurring’ which could mean death, removal, resignation; or upon the election of the next President. This is why the Constitution provides for the removal of the President either through a no confidence motion in terms of section 102 or impeachment proceedings in terms of section 89 at any time. The term of office begins upon the assumption of office by swearing in and ends upon the occurrence of a vacancy by any of the methods mentioned above. A two-day term is a ‘full term’ for purposes of section 88(1).
Second, the fact that a presidential term begins ‘on assuming office’ in terms of section 88(1), and the assumption of office takes place upon swearing-in in terms of section 87, means that a person who has been sworn in twice before cannot be sworn in a third time because that would be the assumption of the office of President for a third time in terms of section 88(2). The proviso in that provision, which renders the period between the occurrence of a vacancy and the election of the next President a non-term, does not and cannot apply to a person who has already been sworn into the office of President twice, so Zuma is disqualified even on that basis.
Third, the five year term of office refers to the National Assembly and not the President. Section 49(1) provides that ‘[t]he National Assembly is elected for a term of five years’. Since the President ceases to be a member of the National Assembly upon their election as President, and since the National Assembly can remove the President from office at any time, the five year term is inapplicable to the office of President.
Similarly, the President’s term ends when the National Assembly is dissolved in terms of section 50 because section 86(1) requires that a new President must be elected at the first sitting of the National Assembly following an election, meaning that if such an election occurs before the expiry of the five year term, i.e. by dissolution, then the President’s term also automatically ends.
Surprisingly, no one picked up on the fact that if he is elected as President following this year’s elections and if he doesn’t get ‘recalled’ before 2029, Cyril Ramaphosa will serve an effective 11 years as President because the few months he served as President between February 2018 and May 2019 are not regarded as constituting a term in terms of section 88(2), in the same way that Kgalema Motlanthe — having been elected to fill the vacancy left by Thabo Mbeki’s resignation in 2008 — would be fully entitled to be elected as President for two terms, regardless of how long each of them would be. It is an exception and not the rule.
To conclude, if there are any MK Party supporters or potential supporters reading this: you will never have Zuma as your President. Use your vote wisely.
What has been billed as a stunning comeback to national politics is actually nothing more than a damp squib. I’m sorry to have been the bearer of bad news (not really).
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