When the Constitutional Court held that the Speaker of the National Assembly has the power to decide whether a motion of no confidence in the president of the Republic was to be by an open or a secret ballot, it also made the following point – and it reads like a warning:
“Members are required to swear or affirm faithfulness to the Republic and obedience to the Constitution and laws. Nowhere does the supreme law provide for them to swear allegiance to their political parties, important players though they are in our constitutional scheme. Meaning, in the event of conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail. This is so not only because they were elected through their parties to represent the people, but also to enable the people to govern through them, in terms of the Constitution”.
This means that MPs are both free to, and obliged to, vote according to their consciences, and that their consciences must lead them to consider what would best serve the interests of the people and comply with the Constitution. The Constitutional Court directly contradicts Jacob Zuma’s statement that as far as he is concerned the ANC comes before the country: ‘I argued one time with someone who said the country comes first. I said as much as I understand that, I think my organisation, the ANC, comes first’. The Secretary-General of the ANC, Gwede Mantashe, said the same – that putting South Africa before the governing party is a ‘terrible concept’ and ‘very problematic’.
The ANC’s Chief Whip Jackson Mtembu and Minister of Police Fikile Mbalula are some of those who have warned that any ANC MP who supported the motion would be disciplined. And all this notwithstanding the Constitutional Court’s statement that a motion of no confidence is –
‘fundamentally about guaranteeing or reinforcing the effectiveness of existing mechanisms, in-between the general elections, by allowing Members of Parliament as representatives of the people to express and act firmly on their dissatisfaction with the Executive’s performance’.
It would appear to be contempt of court and sedition (by impairing the authority of the state by defying or subverting its authority), or incitement and conspiracy to commit those offences, on the part of those who combine and threaten to discipline ANC MPs whose consciences impel them to vote in support of the motion of no confidence.
The ANC’s constitution provides – briefly – that Members of Parliament are bound by caucus and leadership decisions, but this must be interpreted in the light of what the Constitutional Court said. It cannot be right that the constitution of the ANC requires its members to subject themselves to a policy decision that is clearly against the public interest, in order to protect a State President who has been found by the Constitutional Court to have violated his solemn oath of office in the Nkandla matter.
Mbalula said that it would amount to political suicide for ANC MPs to vote with the opposition, and that those who exercise their constitutionally-protected right to vote according to their consciences ‘have got no right to represent their jackets in parliament. They represent the organisation. They are suicide bombers. A suicide bomber is someone who dies for an ideology’.
This resort to the rhetoric associated with terrorism is disgraceful. Mbalula drags debate within the ANC down to the politics of the sewer, dealing with MPs as voting cattle lacking the capacity for rational thought – not merely incapable of, but prohibited from, distinguishing good from evil and threatened with the abattoir if they should try.
Mbalula reveals how little he cares for decisions of the Constitutional Court. In fact, when it comes to defending Jacob Zuma he has in the past shown that he has little grasp of the Constitution and its procedures at all. In 2007 he claimed that the charges of corruption against Zuma were ‘trumped up’ by President Mbeki and ‘nothing more than a desperate plot to block Comrade Zuma’s ascendancy to the highest office of the land, which is driven by a political vendetta’. Mbalula gave no explanation as to how this plot would work in court. Did President Mbeki conspire with, incite, and suborn a small army of crooked lawyers, bent judges and forensic investigators, along with forgers, perjurers and all the rest of the dramatis personae needed for the ‘trumped up’ charges to lead to a conviction? If this is the claim, then why was he not charged with the treasonable violation of his presidential oath of office?
It is now clear that there are ANC MPs who will support the motion of no confidence. Mondi Gungubele MP has stated that not voting with his conscience would be unconstitutional and inconsistent with ANC values and principles. He is reported to have said that his views were now emboldened following Chief Justice Mogoeng Mogoeng’s judgment that the Speaker of the National Assembly did indeed have the powers to decide on whether a secret ballot should be used. Gungubele MP said:
‘We adopted a Constitution which we fully commit to, if you send an MP to Parliament you are submitting that MP to the constitutional imperatives of this country, something wholly accepted in this country as the platform to run our country... You send your delegate in Parliament, making him a [full] parliamentarian. You are not making him a 80 or 90% parliamentarian’.
Dr. Makhosi Khoza MP has also said openly that she intends to support the motion of no confidence. The decision by the ANC to open disciplinary proceedings against her for calling on Zuma to resign, rather than against Zuma, is a massive self-inflicted wound, for which the opposition in Parliament will doubtless be truly grateful as they laugh their way to the polls. It is also a cynical and spiteful attack on her.
It is an act of self-harm because, by ordering ANC MPs to vote against the motion, the leadership is attempting to defend the indefensible and has rendered the entire ANC a hostage to fortune. Dr Khoza would not speak out as she has done if she were alone, and it is now clear that she has support. So if the vote is by an open ballot, will every member who supported the motion also be brought to discipline? And if it is by a secret ballot, with the probability that an even larger number of ANC members will support it, what price the image of a united ANC?
It is cynical, because Dr. Khoza is but one of many members of the ANC – and not the most distinguished – who have spoken out, yet disciplinary proceedings have been commenced against her alone. In reply to comments by the Chief Whip, Dr Khoza asked whether it is ‘extreme ill-discipline to be intolerant of bad leadership and to uphold the Constitution?’
Whatever the result of the vote and whether it is open or in secret, the result will still be bad news for the ANC. The motion can be passed only with the support of over fifty ANC MPs, and whether they can be identified or not the image would be of a bitterly divided party on the point of splitting. Whether in an open or secret ballot, the ANC would reveal itself to be subcontracting the Opposition to do our dirty work for us. What price the image of a united party? And what price our claim that the ANC can heal itself? Jacob Zuma would leave a shipwrecked ANC in the National Assembly and attempts to elect his successor from its crew would probably leave it beyond salvaging.
If the motion is defeated then the opposition parties will have yet another reason to laugh all the way to the polls in 2019, for they will ask the electorate to consider whether it really wants to return to power a party which exudes the stench of corruption and betrayal. When campaigning, they would need to do little more than tell the news.
Jacob Zuma has claimed that ‘People will vote for you in majority because of programmes you present, but once your programmes are there, you try to implement them, some people take you to court; [they say] it is unconstitutional, don’t do it’. But the cases he was complaining about arose because of his own unlawful and unconstitutional conduct, including his egregious failure to repay the benefits he received from the improvements to his private home Nkandla.
If the ANC takes any action against Dr Khoza and the other ANC MPs who will indubitably also support the DA’s motion, the matter will inevitably end up in court. Whose fault would that be?
Following calls at a meeting of the ANC’s National Executive Committee for him to step down, Jacob Zuma warned that he should not be “pushed too far” by his detractors. According to reports, he told ANC leaders to stop criticising him in public as he will no longer continue to keep quiet. Makhosi Khoza is a suitable target for this policy of leadership by intimidation, for as an MP she would lose her post she is expelled from the ANC.
So one must ask: with what sanction will the disciplinary proceedings end in, and what would its purpose be? Will expelling her and other MPs leave the ANC a better organisation?
The Veterans and Stalwarts have issued a statement expressing shock at what is happening to her, adding that –
‘Those who are complicit in her harassment, and those who are too cowardly to protect her, are in fact contributing to the destruction of the ANC. In fact, rather than threaten her with administrative and disciplinary fiat, all parliamentarians should rally behind her, and support her for verbalising what most of them think about’.
I am a mere rank and file ANC veteran and a signatory to the group’s founding declaration ‘For the Sake of Our Future’, though of course my comments are my own and I can speak for no one but myself. I support the statement unreservedly. Will we Veterans and Stalwarts all be brought before disciplinary committees for having supported Khoza MP and Gungubele MP in the stand that they have taken – along with the growing number of members who support the view of the Veterans and Stalwarts?
When asked by the ANC’s Integrity Commission to resign his office, Zuma refused. He claimed that this would be a betrayal of the revolution, and that he knew of plots and threats to get rid of him. The Integrity Commission reported that
‘the essence of Zuma’s refusing to resign is his belief that there exists a conspiracy by Western governments to oust him as president of the ANC and of the country. Their objective is to replace him in order to capture the ANC.
Zuma’s claim of a plot against him is either nonsense or well-founded. If it is nonsense, then he is either a delusional and dangerous paranoiac, or he is knowingly concocting a horror story to satisfy others whose greed, corruption and self-interest – as revealed by the Gupta emails, for example – he needs to protect, in order to protect himself. For good measure he would seem to be writing the Integrity Commission itself into the plot.
On the other hand, if his claim of a conspiracy by unnamed ‘Western Governments’ is well-founded, then truly a major national crisis exists and we need to unite to protect our autonomy and freedom – but this is impossible to do if South Africa is kept in the dark, for Zuma appears to have claimed that much of the evidence was “confidential”. Unsurprisingly, the Integrity Commission rejected the idea of a ‘Western Plot’; doubtless Zuma would claim that this proves that the Integrity Commission, having asked him to step down, is part of the conspiracy.
Arts and Culture Minister Nathi Mthethwa thinks that Jacob Zuma is more than a comrade – he compared him to Jesus Christ, drawing a parallel between critics whom he claimed had been ‘bought’ and were ‘backstabbing’ Zuma for money, and Judas Iscariot who ‘deceived’ Jesus Christ. Unless Mthethwa identifies those who have been bribed to criticise Zuma, he risks being called a liar. Anyway, claimed Mthethwa, the Guptas have received only ‘crumbs’ – let’s call them mere ‘sleazelets’, something like Bathabele Dlamini’s smallyana skeletons.
Considering that it is the Gupta family and not Zuma’s critics who are benefiting by billions of pieces of silver (allowing for inflation), Mthethwa’s ‘comrades’ might wince at his muddled rhetoric. By contrast, in the past the ANC survived the grimmest days of the repression by a different culture – one of courage and integrity.
Now, the African National Congress faces the greatest tragedy of its existence.
In another context also, Jacob Zuma gave a clear indication of how little he feels bound by South Africa’s constitution. He has already expressed the wish that he could be a dictator, that the ANC is more important to him than South Africa and its Constitution, and that the ANC would govern until Jesus Christ returned. When Al-Bashir was allowed to leave South Africa in defiance of a court order that he should be detained until his position in regard to the International Criminal Court had been resolved, Zuma’s Cabinet justified this on the grounds that ‘peace and stability’ were more important than justice and compliance with the law.
If the ANC faces possible defeat in the 2019 election, this frightening new constitutional jurisprudence might be used to justify the suspension of the Constitution on the ground that the election result would endanger ‘peace and stability’. The protections governing a constitutionally-based state of emergency set out in sec. 37 of the Constitution would not apply.
To reply that this is merely a fanciful nightmare is pointless: it is a scenario that should be impossible to envisage, and unless its logic can be falsified then South Africans should now be very afraid. The looming defeat of the ANC in 2019 might indeed not lead to it, but we have the right not to be haunted by such an obscene horror. Faced with this, do the ANC’s leaders still demand that the consciences of individual MPs must hold that it is in the interests of South Africa that Jacob Zuma should remain as President of the Republic?