Deal between Ramaphosa and opposition was unenforceable

The collapse of the “deal” between opposition parties and Deputy President Cyril Ramaphosa is not surprising. From a principled constitutional perspective the collapse of the deal must be welcomed. This is because the Deputy President did not have the constitutional authority to make the deal, which remained unenforceable. To enforce the deal would flout the Rule of Law.

It is sometimes difficult to insist on the scrupulous enforcement of legal rules and principles. Many people are tempted to look the other way when the political party or functionary they admire or are loyal to flout the legal rules and constitutional principles. Conversely, many people only insist on a strict adherence to legal rules or constitutional principles when a political party or functionary they dislike flouts the rules or principles.

Because of the fairly widespread lack of respect for Speaker Baleka Mbete among the members of the chattering classes (and because of the increasing chaos in the National Assembly), there were not many people who questioned the “deal” concluded between the Deputy President and opposition parties. For reasons not known to me, it appears that members of the ANC caucus – correctly – did question the appropriateness of the deal.

There are two reasons why the “deal” (which has since collapsed) was a constitutional non-starter.

First, the Deputy President (while a member of the National Assembly) is a member of the executive and as such represents the executive when he engages with members of the National Assembly in his official capacity.

In terms of section 91(4) the Deputy President has been chosen to act as the leader of government business in the National Assembly. Although the rules of the National Assembly require that he be consulted on several issues and although he serves as a member of the Programming Committee of the National Assembly, neither the Constitution nor the rules of the National Assembly accords the Deputy President (as leader of government business) any leadership role in the National Assembly.

The Speaker heads the National Assembly. Constitutionally only the Speaker can make decisions about the affairs of the National Assembly and then only when this is authorised by the Constitution and the rules of the National Assembly. If a deal was going to be struck about the affairs of Parliament, the Speaker was the appropriate person to do so.

This does not mean that the Deputy President may not meet with the leaders of opposition parties. Neither does it mean that he may not – on behalf of the governing party – make political deals with opposition parties. What he is not authorised to do is to make deals with opposition parties regarding the affairs of Parliament. The “deal” reached last week was therefore (for this reason alone) unenforceable and constitutionally invalid.

But, second, even if the Speaker had led the negotiations with opposition parties and had concluded the “deal”, she would not (in a formal sense) have been legally authorised to do so.

Rule 2(1) of the National Assembly states that the “Speaker may give a ruling or frame a Rule in respect of any eventuality for which these Rules do not provide”.

But the problem is that the rules and legislation already regulate the two most important aspects on which the governing party and the opposition differed. It does so in great detail.

These issues are the disciplining of EFF members in terms of the provisions of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act 2004 for insisting that the President “pay back the money” and the need for the President to answer questions in the Assembly four times a year.

It may very well be that the disciplinary action taken against EFF members were not “in accordance with a procedure that is reasonable and procedurally fair” as required by section 12(3)(a) of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act.

The EFF members have a more than even chance of persuading a judge that the procedure (prescribed by the rules of the National Assembly) that led to their conviction was neither reasonable or procedurally fair. The judge could then set aside the findings. But neither the Speaker (nor the Deputy President) formally has the legal authority to do so.

But this is not a particularly difficult problem to solve. While the Deputy President and the Speaker does not have the formal legal power to suspend or scrap the findings of the disciplinary committee against EFF members, the members of the National Assembly does have that power. All that is required is support from the majority of Members of the National Assembly.

This is because the National Assembly has the power to either endorse or reject the findings of the disciplinary committee established in terms of the legislation. This means that had the President and the Chief Whip of the ANC been able to sell this aspect of the “deal” to their party, its members could have declined to support the findings of the disciplinary committee against the EFF members. The disciplinary action against the EFF would then have fallen by the wayside.

This is somewhat of a technicality, which means that in practice either the Deputy President or the Speaker would have been able indirectly to deliver on a promise to halt disciplinary action against the EFF if the members of their party had backed them up.

But this is not the case with the requirement that the President must appear in Parliament to answer questions. This is, first, because section 55(2) of the Constitution states that the “National Assembly must provide for mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it”. These executive organs of state include the President.

This obligation is given practical effect to by National Assembly rule 111 which states that:

Questions to the President must be (a) scheduled for a question day at least once per term in accordance with the annual Parliamentary programme; and (b) limited to matters of national and international importance.

The rule is peremptory, which means the President does not have a discretion in the matter. The Speaker must ensure that he is scheduled to answer questions once every term.

Here the rule at first appears to be confusing. A “term” is defined in the rules as “the period for which the Assembly is elected in terms of section 49(1) of the Constitution”. Section 49(1) states that the National Assembly is elected for a term of five years. If “term” is given this meaning every time the word “term” is actually used in the rules, it would render many of the rules incomprehensible and absurd. This is so because the rules often refer to a “term” when it means one of the four periods a year when the Parliament is in sitting.

It would also mean a President would have to answer oral questions in the National Assembly only once every five years. This would clearly be in conflict with section 55(2) of the Constitution, which means the rule must be read differently. This is exactly what has happened up to now.

As I noted, the word “term” is also used elsewhere in the rules to refer the distinct periods in which the Parliament is in session each year. Given the context of rule 111, “term” clearly refers to these distinct periods. Usually there are four “terms” for Parliament every year.

However, this year there was an election, which means when establishing whether the President has complied with his legal obligation set out by rule 111, one has to establish how many terms Parliament was in session this year after the May election.

The Parliamentary Programme for the fifth Parliament elected after the May election states that Parliament sat for three distinct terms after the election. This means that the rules of the National Assembly require that the President answer oral questions in the National Assembly at least three times from June to November this year.

This did not happen.

The President has only answered oral questions in the National Assembly once since the election. He is therefore legally required to answer questions in the National Assembly two more times before the third term of Parliament ends on Friday. This is not going to happen, which means the President (and the Speaker who ought to arrange for this) are therefore in breach of their legal obligations in terms of section 55(2) of the Constitution read with rule 111 of the National Assembly.

Neither the Deputy President (as leader of government business) nor the Speaker has the legal authority to waive these rules. A basic tenet of the Rule of Law is that all peremptory, pre-announced and clear legal rules have to be complied with. In the absence of a court ruling to authorise a non-enforcement of a legal rule, it would constitute a breach of the Rule of Law to ignore such a rule in order to facilitate a political agreement.

This is the thing with peremptory legal rules: they cannot be suspended merely because a few politicians decide that the legal rules are inconvenient or – if applied – would embarrass the President or disadvantage the opposition parties.

What is clear is that there has been a breakdown of trust between political parties in the National Assembly. Without a modicum of trust, the system cannot work properly. Instead of a lively and robust platform for democratic contestation, it becomes a mini-war zone. And in a war, brute force – and not the strength of argument – is the only thing that counts. But politics is not (only) about brute force – at least not in any system with democratic pretensions. If the system does not work, its legitimacy will be compromised. Eventually the legitimacy of the both the governing party and opposition parties would also suffer.

This means that, despite the legal difficulties, some kind of solution need to be found to ensure that the rules are impartially applied and the members more or less obey the impartially applied rules. A starting point would be to ensure the implementation of rule 111 and to arrange for the President to answer questions as required by the Constitution and the rules of the National Assembly.

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