JAUNDICED EYE

Keeping uMkhonto weSizwe off the South African ballot paper is little different — and at least as potentially explosive — than trying to exclude Donald Trump from the United States presidential election.

If at all possible, it’s always better for electoral disputes to be settled by voters in a polling booth, rather than by judges in a court. It is simply a historically verifiable fact that the use of legal stratagems to prevent a significant portion of the population from expressing their electoral preferences, guarantees a world of future pain, chaos and uprising.

In light of the turmoil of a revolution and a civil war in America, and a protracted low-grade civil war in South Africa, one would think that the governing parties of both countries would be alert to the dangers of voter exclusion. It seems not. In both countries, the incumbent parties are facing major electoral setbacks and decided that the game was worth the candle — they would deal with the future, or not, when it happened. ___STEADY_PAYWALL___

In the US, Democratic Party-inclined activist groups, assisted by public officials elected on Democrat tickets, got the highest courts in the three states of Colorado, Maine and Illinois to bar Trump from the presidential ballot. At least 34 other states geared up to follow suit, effectively ending Trump’s 2024 presidential bid virtually before it started.

The claimed legal basis of this exclusion was a post-Civil War amendment to the US Constitution that prohibited from election to public office anyone who had sworn an oath of allegiance to the Constitution and then engaged in “insurrection or rebellion”. The alleged insurrection, in Trump’s case, was the storming of the Capitol by his supporters with his connivance and encouragement. 

What substantially weakened this argument, especially in the minds of that half of Americans who support Trump, was that he had not been convicted in any federal court of such an act. Shades of the Queen of Hearts’ demand in Alice’s Adventures in Wonderland for “Sentence first, verdict afterwards.”

In any case, the US Supreme Court was quick to unanimously reverse Trump’s exclusion, ruling that states could not disqualify candidates from standing for federal office. In doing so, the court ducked the bullet of deciding who would NOT be allowed to be the next US president, a ruling that would split the country down the middle.

It was not only a judicially sound decision but politically savvy. Had the court not done so, it would have become the major political player in the presidential race: nine judges deciding what is best left to the approximately 155 million people who will cast their ballots in November.

The South African courts are faced with a similar steaming bowl of crud. It’s a dish that our judiciary, like their US counterparts, should make every effort to avoid tucking into.

The ANC, shaken to the core by polling that shows a remarkable performance by MK, a party that’s only a few months old, is desperately trying to get the courts to remove it from the May 29 ballot papers. Like the Democratic Party in the US, the ANC wants the courts to do what it doesn’t trust the voters to do.

We shouldn’t underestimate the extent of the ANC’s desperation. At this stage, with two months to go, it is doing badly in voter surveys; it claims to be struggling to fund its election campaign; there has been a cascade of political setbacks — an 11-day failure of water supplies in Johannesburg; continued load shedding; the failure of a three-year attempt to resurrect the national airline — and President Ramaphosa’s “anti-corruption” campaign exposed as a charade by an ANC candidates list that includes many of the major names implicated in state looting by the Zondo judicial inquiry. 

A few weeks ago, a Brenthurst/SABI voter survey with a 3% margin of error showed MK with 13% of the national vote and 25% in KwaZulu-Natal, the home province of its star supporter, Jacob Zuma. This week, the methodologically more robust ENCA/Markdata survey, with a 1.8% error margin, put MK at 10.9% nationally and 35.6% in KZN. Brenthurst has the ANC at 39% nationally, while ENCA has it at 41.4%.

There is little that the ANC can do at this late stage about the country’s collapsing infrastructure. It can only cross its fingers and hope, while at the same time running Eskom’s diesel generators at vast cost, as well as implausibly blaming profligate Johannesburg consumers for reservoirs dropping from 70% capacity in December to system-collapse levels three months later.

The ANC is trying to solve its financial problems with an opportunistic tweak to political funding laws that will see Ramaphosa’s party get a significant increase in the allocation that all parliamentary parties get from Treasury coffers. The Electoral Matters Amendment Bill, which is now before the National Council of Provinces, will put an estimated R52 million into ANC coffers, to the disadvantage of the smaller parties. The Democratic Alliance — which will also benefit from the new formula — has joined the smaller parties in warning that they will challenge the constitutionality of the Bill.

But it is in its application asking the Electoral Court urgently to declare MK’s registration unlawful, unconstitutional and invalid, that we see the ANC at its most cynical and reckless. On Wednesday, the court reserved judgment on the matter.

As I wrote last week in this column, the grounds for the ANC application are tenuous, resting on the dubious claim that MK is “stealing its legacy” by using the name of the party’s long-disbanded armed wing, along with some hair-splitting on whether MK’s registration by the Independent Electoral Commission was legal, given that the IEC had allowed MK to rectify some errors and omissions in its original application.

The IEC, which opposed the ANC application, noted that the ANC had failed to challenge MK’s registration within the prescribed timelines. The IEC generously did not drive home the point that the ANC’s sudden nitpicking concern over the MK registration appears to have been triggered by the belated realisation that the MK, which they had initially dismissed as a joke, was making inroads into ANC support.

However, Advocate Dali Mpofu, appearing for MK, was less merciful. He told the court that for five months, the ANC had failed to act against the MK registration, missing all the procedural deadlines. “So, what changed?” asked Mpofu. “The only thing is when former President Zuma announced that he would campaign and vote for MK.”

As with Trump in the USA, it is difficult to see that the Electoral Court will overturn on what would likely amount to technicalities, a decision of the IEC, an independent Chapter Nine institution charged with protecting the Constitution. Especially since such a ruling would deprive possibly a couple of million Zuma supporters from voting for MK in preference to the governing party.

None of this is to suggest that MK — or Trump, for that matter — should have carte blanche to incite violence and mayhem should they be thwarted in the courts or at the polls. Nor does it mean that the IEC should, or would, succumb to threats if they refuse to register Zuma — who is excluded by his conviction for perjury — as MK’s presidential candidate.

The statute books in both countries have plenty of laws that law enforcement and prosecuting authorities can use to fairly but firmly nip such behaviour in the bud. If only, of course, the Ramaphosa government had any record of being able to do so in the past.

The problem, as evidenced by the lack of state response to the July 2021 insurrection by Zuma-supporting gangs, is that political appeasement has left the credibility of both the SA Police Service and the National Prosecuting Authority in shreds. South Africa has for years suffered because of a desperately weak president’s instinct for expediency. It looks like it’s at last the ANC’s turn to feel the pain.

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