By constitutional design, it is almost impossible that South Africa could be without a president after parliament’s first sitting. The constitution ensures that, whatever political negotiations may be under way between political parties, these would not prevent the election of a president.
Though it may be politically prudent, it would not be necessary, at least as a matter of constitutional law, for political parties to have finally settled on the “modalities” of a government of national unity — announced as the preferred option of the ANC on Thursday evening. Nor would the sitting be delayed if, as initially threatened by the MK Party, any prospective MPs were to boycott parliament’s first sitting.
Things appear very fluid in the political realm at the moment, with a flurry of “engagements” and negotiations behind the scenes between political parties. South Africa is in uncharted waters after the ANC lost its majority in parliament. What has not changed is the constitution, which sets out procedures, time frames and the parameters within which these political negotiations must occur and with which all political parties must comply.
MK Party members had initially suggested they may boycott the first sitting of parliament, and some commentators suggested this could, constitutionally, hamstring the constitution of parliament and the election of its first office-bearers. It appears the party may have taken legal advice, as its spokesperson, Nhlamulo Ndhlela, said in an interview on SABC on Thursday that its MPs would be in parliament for its first sitting and the party would be urgently challenging the election results in court. A court challenge is the prescribed route if a party objects to the outcome of an election.
The election of the president and the speaker of parliament are governed by schedule 3, part A of the constitution — up to now a set of provisions that has never been tested by the courts because the ANC had always had a conclusive majority in parliament.
But the constitution caters for an eventuality where one party does not win an outright majority at the polls.
Schedule 3, part A says that if there is only one candidate nominated, the person presiding over the first sitting — the chief justice or a judge delegated by him — must declare them elected.
If there are several nominations, there is a vote by secret ballot. Each member present is entitled to one vote, says the constitution. The candidate elected is the one “who receives a majority of the votes”.
The first thing to note is that any MP who doesn’t turn up (the constitution says “each member present”) is not entitled to vote, and their vote is therefore not counted. So, in a parliament of 400 members, if 80 members stay away, “the votes” would be 320 and “a majority of the votes” would be half of those, plus one.
Boycotting the first sitting of parliament would not stop ANC president Cyril Ramaphosa from getting elected. Instead, it might help him get elected as he would need fewer votes to get a majority.
If everyone turns up and casts a vote, this means the candidate must get 201 votes. If there are three or more candidates, the candidate with the fewest votes is eliminated, and the MPs vote again. This is repeated until it comes down to a run-off between two candidates, which must mean that one candidate will get “a majority of the votes”.
The constitution does not explicitly deal with a scenario where MPs turn up but do not vote — if they were to abstain, for example. But both a textual reading (by looking at the plain meaning of the text) and a purposive reading (looking at the purpose of the provision — to elect a president) would support the idea that an abstention is not a vote. It is a non-vote. So, if 50 MPs were to abstain, the total votes would be 350 and a majority of these would be 175, plus one.
If two candidates get an equal number of votes, the chief justice must set a date for another sitting, within seven days, and the whole process would start afresh.
It would seem the only way that we could end up president-less after the first sitting (or, at worst, another sitting, seven days later) is if no quorum is obtained for the first sitting. The quorum, according to the constitution, for “any other question” other than the passing of a bill, is one-third. The idea that two-thirds of MPs will not turn up for the National Assembly’s first sitting is unlikely in the extreme.
What this means for the biggest party in parliament, the ANC, is that it need not be bogged down by threats of boycotts. And, from a constitutional point of view, there is no time pressure to sew up a government of national unity deal before the presidential election deadline.
However, it may be prudent, politically — especially for the other political parties — to do so as the constitution gives an almost a free hand to the president in terms of creating a cabinet. This is unlike the previous government of national unity, under former president Nelson Mandela’s administration, which was governed by an annexure to the constitution. That annexure lasted only until 1999. This time, a government of national unity would be by agreement, instead of by law.
The constitution does not limit how many members of cabinet there may be, saying the president “may select any number of ministers from among the members of the assembly”. Ministers are appointed by the president who “assigns their powers and functions, and may dismiss them”.
The only limit under the constitution is that, unlike under Mandela’s first administration, the 1996 constitution permits only one deputy president, saying in section 91 that the cabinet consists of the president and “a deputy president”. Unlike in Mandela’s government of national unity, the constitution does not give the deputy president any specific powers, only saying he or she must “assist the president in the execution of the functions of government”.
The chief justice is yet to announce the date of the first sitting, but in terms of the constitution it must take place within 14 days of the declaration of the election results, which was June 2. Taking into account the public holiday on June 16, the latest day for the sitting is June 18, secretary of parliament Xolile George told the SABC on Thursday.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.