Which comes first: The ANC or the Constitution?

All of 110 years ago the American Chief Justice Charles Evans Hughes made a speech in which he is reported to have said:

““we are under a Constitution, but the Constitution is what the judges say it is...”

In South Africa today, our Constitutional Court, the highest court in the land, has pronounced on the ins and outs of a motion of no confidence in the president and his cabinet in its judgment on litigation between various political parties. The judgment is long and learned. Its take-home message for members of the ANC caucus in the National Assembly is a simple one:

“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.”

Our Constitution is the supreme law; any conduct that is inconsistent with it is invalid. This is what sections 1 and 2 of the founding provisions of our post-1994 order actually say. The court’s finding is an expression of what our supreme law means and it puts to bed the long standing suggestion, so beloved of sophists in the governing alliance, that the ANC constitution trumps the national Constitution. President Zuma has given conflicting answers on this question, but his current position matches that of Gwede Mantashe, who insists, according to press reports gathered in “Legalbrief Today” of 1 August 2017 that

“ANC MPs are ‘not their own bosses’ and lashed out at the notion of MPs following their conscience. He said if MPs had a conscience, they should have followed it before they went to Parliament on an ANC ticket.”

Jackson Mtembu, who most properly wanted the entire NEC of the ANC to resign last year, has reconsidered his position and is equally shocking in his current stance. He says:

“No ANC member of Parliament is a free agent. They are deployees of the ANC in Parliament and take their directive from the party, as is the case in all political parties in SA.

"We are calling on the organisation, through its constitutional structures, to act against the ill-disciplined behaviour of comrade Gungubele.

"His ill-discipline is no longer an ANC caucus matter as it is questioning and defying decisions of the ANC as a political centre and authority."

[Gungubele has indicated that he thinks the President should resign.]

These two senior ANC functionaries should know better than to contradict the court. Its order is binding on them and their defiance of it does them no credit. They should publicly and immediately apologise for their erroneous understanding of the legal position and desist from illegally threatening their caucus members who have correctly understood the judgment and are prepared to act on it by voting their consciences, not the party line prescribed by Luthuli House.

All members of the ANC caucus should know that they enjoy, like everyone else, the protection of the rule of law and are both obliged and entitled to vote their consciences with impunity in the upcoming debate. No rule of the ANC can trump what the Constitution allows. The ANC constitution requires honesty of its members, not sheeplike behaviour. In addition, as can be seen from the words quoted above from the judgment, all MPs are enjoined to vote their consciences in the best traditions of the Freedom Charter and its central notion that “The People shall Govern”.

As representatives of the people first, and deployees/nominees of their political parties second, members of the National Assembly have the duty to comply with the values of openness, accountability and responsiveness. These are also set out in section 1 of the Constitution and are far too often overlooked or completely forgotten in the cut and thrust of parliamentary debate and interaction.

The legal position of those who undertake the awesome responsibility of voting in the monoco debate has been accurately sketched by Prof Pierre de Vos on his “Constitutionally Speaking” blog. Also of interest to MPs will be the writing of ANC stalwart Mervyn Bennun, on politicsweb, under the heading “ The ANC faces the greatest tragedy of its existence”. Outa has published a 400 page document setting out the malfeasance and misfeasance that have characterised the Zuma years. These 400 pages cry out for a vote informed by conscience rather than misplaced party loyalty. The Daily Maverick has also, some months back, carried a draft charge sheet for President Zuma prepared by Accountability Now. Those seeking guidance from outside of themselves have a surfeit of sources to consult.

In the end though, it is probably more important for those who are wavering on the vote to look inside themselves, once fully informed of the state of the nation, and ask the simple question:

“Can I, in all good conscience, toe the party line of the ANC on the vote in the face of the evidence of state capture, a silent coup, the Guptaleaks and the recession, the junk status of the country, the failure of service delivery, the seemingly endless joblessness and grinding poverty abroad in the land?”

It will not help to abstain, to be absent or otherwise avoidant. The Ben Turok walk-out option (which he used to good effect in the debate on the secrecy legislation) is not available in a monoco. The Constitution requires that a majority of members of the National Assembly vote for the motion, irrespective of how many turn up for the vote, whether openly or by secret ballot. This means that to secure the forced resignation of the president and his cabinet it will be required those promoting the motion to amass at least 201 votes, irrespective of the number of members present and voting at the end of the debate.

The fact that the ANC will not be able to succeed with disciplinary measures against those who break ranks along with Pravin Gordhan, Makhosi Khosa, and Mondli Gungubele (and, presumably, if they are consistent, the entire SACP sub-caucus)  may be regarded as cold comfort by some career politicians. They will point to the drawing up of a “party list” for the next general election in 2019 and will doubt that their names will be on it if they defy Mantashe and Mtembu. It is so that their popularity with the current leadership may be dented, but they should bear in mind that the wrecking ball that the Zuma faction is currently swinging is likely to damage much more than their chances of making the list next time. Also, the current leadership may not be in positions of power when the next list is prepared. The popularity of the ANC is currently waning; junior members who remain loyal to the official line of the party, will be rewarded with a place so low on the party list that their prospects of re-election will be slim, much slimmer than if they tackle the renewal of the ANC, so much desired and so very overdue, now.

To those ANC members who are not mere voting cattle, to the sentient beings in the caucus, the following words, notions and thoughts bear pondering before the vote is cast:

Respect yourself

Restore your dignity
Reject corruption
Re-enforce integrity
Require accountability
Rubbish impunity
Rejoice in zero-tolerance of corrupt acts
Rejuvenate your party
Replace your President

These are all in the nature of the “right thing to do”. Let’s all hope that there are sufficient members of the ANC caucus who are moved to act on the message of the 3 x 3 Rs by bucking the party line (so eloquently illustrated by Zapiro’s latest cartoon) and voting their consciences instead.

Paul Hoffman SC is a director of Accountability Now and the author of “Confronting the Corrupt.”