Dear Corruption Watch,
Rarely has there been so much agreement in South Africa that Nkandla was wrong, an egregious expenditure of public funds, and that our leaders should be held accountable. Under what circumstances could the South African president or a member of the cabinet be disqualified from continuing to hold office?
Dear Seeking Justice,
There is no particular constitutional provision dealing specifically with the grounds on which a cabinet minister can be disqualified from continuing to hold office.
However, all but two cabinet ministers must be members of the National Assembly. To remain a member, cabinet members may not fall foul of section 47 of the constitution, which sets out how someone may be disqualified. Grounds for disqualification include whether the MP is an unrehabilitated insolvent, has been declared to be of unsound mind by a court, or has been convicted of an offence and sentenced to more than 12 months' imprisonment.
But the truth is, if you are already a cabinet minister, it is nearly impossible to be disqualified quickly.
For example, it can take years from accusing someone of a crime to the conviction of that person. Even after conviction people can, and frequently do, take the matter on appeal to every court that will hear them.
That process of appeal can also take ages and the constitution disqualifies MPs only once their appeals have been determined.
For this reason, a better way to hold cabinet ministers accountable is through the president. He or she can dismiss members of his cabinet and may do so without having to wait years for criminal proceedings to be completed.
What about the president then? When, if ever, is he disqualified from acting as president? The constitution leaves this mostly in the hands of parliament – although not in the way you might think.
The president is elected from the National Assembly, so at the time of his or her election must be eligible to be an MP. However, once appointed, the president stops being a member of the National Assembly. This means that the grounds for disqualification that apply to members of parliament stop applying to the president.
So, to permanently remove the president from office, two thirds of the National Assembly must vote him out in terms of section 89 of the constitution. The assembly may only do this if the president has seriously violated the constitution or the law, is guilty of misconduct, or is unable to perform the functions of the president.
If there is a successful vote to remove the president for misconduct, he or she may not receive any of the benefits of being president and may not serve in any public office.
Getting two thirds of parliament to vote to dismiss the president is difficult. In the US, only two presidents, Andrew Johnson and Bill Clinton, have faced impeachment and neither attempt was successful.
In South Africa, where one party has a clear majority, the likelihood of voting a president out for misconduct is unlikely.
There is an easier way for the National Assembly to remove the president and that is by passing a no-confidence vote in him under section 102 of the constitution.
This only requires a majority vote and, if successful, requires the president and his entire cabinet to resign.
Unlike removals under section 89, a vote of no confidence does not have the effect of permanently disqualifying the ousted president from holding public office. He or she may convince parliament that they are still the best person for the job and make a triumphant return to office.
• This article was first published in Sunday Times: Business Times