Is National Assembly violating the Constitution?

The Speaker of parliament Baleka Mbete issued a statement on September 22 2008, outlining the parliamentary process to deal with the resignation of President Mbeki.

The statement made reference to the election of the new president in terms of section 86 of the Constitution. Section 86(1) reads, “At its first sitting after its election, and whenever necessary to fill a vacancy, the National Assembly must elect a woman or a man from among its members to be the president.”

Section 86(1) clearly refers to an election of the president at the first sitting of the National Assembly after the general election had been held. This would not be the “first sitting” of the National Assembly since its election. Also, this section of the Constitution cannot be applicable for an election of a president, as no general elections have been held.

It appears there is a deliberate attempt by the ANC to circumvent the provision of section 90(1) of the Constitution to prevent the Deputy President Phumzile Mlambo-Ngcuka from acting as president until elections are held. In terms of this section, when the president is absent from the Republic or otherwise unable to fulfill the duties of president, or during a vacancy in the office of president, the deputy president is first in line to act as president; if not available then a member of Cabinet or the Speaker may act as president.

Mlambo-Ngcuka had indicated that she may tender her resignation, but that has not happened and is entitled in terms of the Constitution to act as president. It would be interesting to see whether Chief Justice Pius Langa would preside over what appears to be a blatant violation of the Constitution by the ANC.

According to my layman interpretation of the Constitution, the appropriate procedure should be an appointment of an acting president in terms of section 90(1) of the Constitution; thereafter within 30 days elect a member of Cabinet to fill the vacancy of President in terms of section 86(3). Section 50(2) provides for the “acting president” to dissolve the National Assembly if the Assembly fails to elect a new president within 30 days after the vacancy occurred.

Section 50 as referred to above implies that an acting president was appointed when a vacancy occurred in the office of the president. For the Speaker of Parliament to impose a process that is not in accordance with the prescription of the Constitution would be criminal. I hope my interpretation is incorrect; otherwise our country is facing a constitutional crisis of unprecedented proportions since the dawn of democracy.

If indeed the ANC is sincere in its pronouncements that it seeks to mend the bridge between the warring factions, it should be extending an olive branch to Deputy President Mlambo-Ngcuka instead of crucifying her for the sins supposedly committed by her husband, former national director of public prosecutions Bulelani Ngcuka.

Her appointment as the Deputy President following the dismissal of Jacob Zuma from that position was not welcomed by his sympathisers and it is common knowledge that she is not held in favourable regard by his fellow comrades at Luthuli House (ANC headquarters). But that is beside the point. Constitutionally she is the deputy president of the country and should immediately assume the acting presidency until a new a president can be elected.

The decision by the ANC to elect Kgalema Motlanthe as president is consistent with the general view that there is a concerted drive by the ANC to oust those who are close to President Mbeki. It is without doubt that the majority of South Africa would prefer Kgalema Motlanthe to Jacob Zuma as president of the country post 2009 elections.

The Constitution should not be compromised for political expediency and settlement of political scores. The general elections are only due in six months time and the ANC would be in a position to elect whomever they please as president. In the meantime the Constitution should be respected and due process be abided. What is more shocking is the lack of scrutiny of the process followed by the ANC by those learned legal experts who have been making comments on this political drama since the ANC national executive committee announced its decision to fire the president.

The issue of a political centre of power residing in Luthuli House is problematic. This notion that Cabinet members, including the president, as being seen as “deployees” of the ANC rather than constitutionally elected members of Cabinet representing the ANC is undermining the institution of government; it blurs the line between party and state. The constitution of the ANC is made to take precedence to the Constitution of the country. With the ANC deciding to rest the centre of political power at Luthuli House, the president of country becomes a stooge and mere puppet of the national executive committee. Powers of the executive in terms of the Constitution become meaningless as the prerogative of the president is restrained.