We have seen the hammer coming down on President Zuma in recent days with the unhinged determination of a medieval blacksmith working the overnight shift. The insistent calls coming from all shades of South African society demand that Mzolosi resign immediately. In effect, these calls are that the democratically elected President, Jacob Zuma leave office immediately. I am writing this article because I believe Mzolosi for all his faults is still a democratically elected president with a legal mandate and right to govern South Africa. The office of President deserves our respect. We can judge Msholozi as corrupt if you will, but we cannot undo the many successes of Madiba, including constitutional democratic government, by setting aflame the flames of unconstitutional protest regime change. If certain segments do not want Msholozi their civic right is to demonstrate yes; but their rights as citizens is to vote him out or wait for the next election, this is what nurtures peace in a country.If you take the sum total of the protestors they are but a minuscule amount of people compared to those who voted for Mr. Zuma.
The calls for Msholozi to resign are fundamentally, if not brazenly unconstitutional since the South African constitution specifically states that votes are binding and give a mandate to the elected president to govern for a term of years. Zuma’s mandate is not over.
When people ask for a president to resign they are saying the mandate given on election day (assuming the elections were free and fair) should no longer count. The franchise (or vote) is a property right that flows from being a citizen. All citizens have the same voting right which when counted achieves a majority result, and thus bestows a mandate. This is what democracy is about: elections and votes are respected.
The vote is the instrument that gives power; not the bullet as some have been misled to think. Only when there is a consensus on votes as instruments of power can democracy truly flourish. Many a Civil war ( in Africa and Latin America) have been caused by ignoring the mandate given by the votes. The attacks on Zuma sometimes assume a personal, hateful, childish and revengeful tone, fueled by envy they blind and distort the foundations of Mzansi and what Madiba achieved - peace.
A principle which states that only an election changes government should be practiced and not merely talked about. When a president is voted in from whatever political party, the losing party must not try to undermine his term by demonstrations calling for his resignation. Election nullification through popular protest is an insidious way to go to Ndlamba ndlovu through the back door. There is a serious domino effect when presidents are removed by popular protests. In the 200 something years of U.S. democracy, no American President has been protested out of office, even unpopular presidents like George H.W Bush, and Jimmy Carter were given their constitutional mandate to govern - why then dadewethu should South Africa be encouraged down this slippery path of popular protest?
By further clarification: a vote means something and should be respected until the next election. These are serious questions that are at the heart and core of South African democracy. Africa in general fights to achieve its first one-man-one-vote, then instead of honoring election results thereafter, it begins to devalue the election mandate and result leading to civil wars. This is wrong, the foundation of any democracy is to protect the result of an election; whether that result is a day old or five years old is immaterial. The election result is a legally binding result and gives the President, whomever it is, a mandate.
In, Rights of Presidents (Forthcoming, Malandela Press, 2018) I address the rights of U.S. elected presidents emanating from Article II of the U.S. constitution to govern with the exception of criminal immunity. South Africa is no different, Section 83 and section 89, enshrine the penultimate rights and mandate of South Africa’s President. A huge part of the South African Presidential provision in the constitution is the right to govern for a full term, unless impeached. Demonstrations (popular protest) are not a substitute for voting.
I am a strong supporter of the evolution of African constitutional democracy from dictatorship to a functional constitutional democracy. The current president of South Africa, Mr. Zuma, regardless of his mistakes and what he means, is an elected president and like any president in any democratic country his office and the election process must be respected. Otherwise what is the point of voting, when people can remove a president by popular protest? When we overly disrespect Zuma, we also disrespect the Constitution. How many times can a man disrespect his wife without disrespecting his very own children? I agree that Zuma has his faults, like all of us, including myself, but we should all understand that short-stop solutions like protests and personal insults does not build a solid democracy. It creates a culture of anarchy.
A democracy is built by constitutional safe guides such as elections; the constitutional court; and the legislature, and not through a culture of popular protest stemming from unsubstantiated claims of an elected leader's corruption. In a democracy the center of gravity has always been the ballot. To substitute it with impeachment or demonstrations is to encourage popular protest and demagoguery. that is demonstrations undermine an elective mandate. That would a false premise and a death to African democracy in general. Demonstrations are important in so far as they bring attention to certain voices in the body politics but they are not a substitute for the mandate of the majority.
There exists a contract between the voter and the president. This contract can only be undone by a similar ballot or democratic process. An example of the binding nature of this social contract would be marriage which requires ascent, signatures and witnesses; and court notice. A person cannot be merely married through "popular protest" but must engage the law to undo the contract of marriage and enter into a secondary contact called - divorce. see, Rights of Presidents. Mr. Zuma, after all, is not a holdover from a bad process but is a leader who was voted for in fair elections. To say that President Zuma should step down is to disrespect the inherent power of votes and the social contract to govern given with the votes.
In sum, the biggest lesson from the Msholozi presidency is that people should make better decisions at the ballot box on election day. Change of government by popular protest is not only addictive but is disruptive and unconstitutional. Ken Sibanda, is an American Constitutional Attorney born in Transkei South Africa. An author of numerous works, he is known affectionally as Tecumseh for his work in literature and film. Including the Tony Mzila trilogy: 1948, Guns of Apartheid, and Jonga.