On the ANC Constitution and the election of a new NEC: the legal issues

In less than two weeks the governing African National Congress (ANC) will be holding its national conference, where it will elect a new President as well as other leaders who will also serve on its National Executive Committee (NEC). The party will also (almost incidentally, it sometimes seem) be discussing, and deciding on, its future policies. The leadership elections are closely contested, and court challenges to various aspects of the election process have raised questions about whether the conference will go ahead at all. So, it is time to turn to the ANC Constitution to try and figure out what the legal permutations might be.

Last week the Free State High Court declared all decisions taken by 29 ANC branches in the Free State (including their nominations for leadership positions inside the ANC) unlawful and invalid. It also held that the provincial conference – where a new Provincial Executive Committee (PEC) were to be elected – could not take place until the 29 branches held lawful meetings and made lawful decisions.

The High Court in Pietermaritzburg had already declared the election of the KwaZulu-Natal PEC unlawful and invalid earlier this year. The KwaZulu-Natal leadership of the ANC was in court again last week to ask for leave to appeal the judgment. Lodging an appeal would normally suspend the effect of the judgment until the appeal is finalised. But during last week’s hearing the applicants applied for an execution order to force the current PEC to vacate office, regardless of whether the appeal is heard or not.

Lay observers and lawyers with little knowledge of the Constitution (of which, unfortunately, there are quite a few) might wonder why a dispute amongst members of a political party would land up in court at all, as it could be argued that (at least for certain purposes) political parties are private entities who can arrange their affairs as they wish.

But section 8(2) of the South African Constitution makes clear that the rights in the Bill of Rights do not only bind the state. These rights also bind private individuals and “juristic persons” (legal entities like political parties) when the duties imposed by the rights could and should be enforced against such private individuals and juristic persons (the wording of the section is a bit more elaborate). This means that political parties are bound by section 19(1)(b) of the Bill of Rights which states that:

Every citizen is free to make political choices, which includes the right… to participate in the activities of, or recruit members for, a political party.

In 2012 the Constitutional Court confirmed in its judgment of Ramakatsa and Others v Magashule and Others that this meant that political parties had a constitutional duty to comply with the provisions of their own Constitutions. The right to participate in the activities of a political party would mean nothing if the party could flout its own Constitution and rules. As Justice Yacoob stated in his judgment:

the right to participate in the activities of a political party confers on every political party the duty to act lawfully and in accordance with its own constitution. This means that our Constitution gives every member of every political party the right to exact compliance with the constitution of a political party by the leadership of that party.

Where an ANC branch does not follow the provisions of the ANC Constitution (or the pre-announced electoral rules), it is thus acting unconstitutionally and unlawfully. Decisions taken in such an unlawful manner would themselves be invalid.

Where a PEC or the NEC were elected in a manner that did not comply with the ANC Constitution or electoral rules, it would be as if the PEC or NEC was never elected at all. But what happens if the term of the National Executive Committee (NEC) of the ANC – which includes the top six leaders of the ANC – comes to an end without a new election having been held or if the election is nullified by the court because of irregularities?

Put differently, what will happen if the ANC’s December conference is collapsed and no elections for a new NEC can be held, or if there is cheating with the election of the new NEC and the court declares the election unconstitutional and invalid?

This is a tricky question to answer, perhaps because the obvious answer looks rather scary. (It is for this reason that I would be surprised if delegates collapse the conference. It would be extremely short-sighted and would cause serious harm to the organisation. For the same reason cheating is most likely to occur only if the cheaters believe that they will not be caught.)

A duly elected and legally valid NEC is absolutely pivotal for the proper working of the ANC as an organisation. While branches are said to be the heartbeat of the organisation, without a properly constituted and legally valid NEC the party cannot function properly.

Rule 12.1 of the ANC Constitution makes this clear, stating that the NEC “is the highest organ of the ANC between National Conferences and has the authority to lead the organisation, subject to the provisions of this Constitution”. In terms of Rule 12.2.12: the NEC institutes “disciplinary proceedings against any member and temporarily suspend the membership of any member”. Furthermore, only the NEC can convene a National General Council (Rule 10.6).

But most importantly, if there is no validly constituted NEC, there will be no one with the legal authority to convene an elective conference. The NEC is the body that appoints a Conference Preparatory Committee (Rule 10.2) and it is also the body that is empowered to appoint the Electoral Commission (Rule 14) who is tasked with running the election for a new NEC.

In terms of Rule 12.3 the NEC “except where otherwise stipulated, shall be elected by secret ballot by the National Conference and shall hold office for 5 (five) years”.  On its face, the term of office of the ANC NEC thus comes to an end in December this year. If the conference collapses and no new NEC can be elected or if the court declares the election invalid, it could create serious practical problems for the organisation because its Constitution does not foresee the possibility that the term of the NEC could come to an end without there having been a valid election for a new NEC.

In such a case the best option would be to rely on Rule 9 of the ANC Constitution, which states as follows:

29.1 A Special Conference of the ANC may be convened by the NEC at any time or at the request of a majority of the Provinces for the stated purpose or purposes.
29.2 Not less than one month’s notice of such Conference shall be given.
29.3 Participation at the Conference shall be determined by the NEC, provided that branches are represented at such a Conference in proportion to their membership.

If the December conference is collapsed there will no longer be a legally functioning NEC, which means a conference could only be convened at the request of a majority of the Provinces (if there are validly elected PEC’s in the provinces, of course). But the NEC will not exist so could not determine participation at the conference (nor appoint the Electoral Commission), which might give rise to very complicated and protracted legal challenges about who should be permitted to attend the special conference and who should run it.

The ANC Constitution does allow the NEC to “take all steps necessary or warranted for the due fulfilment of the aims and objectives of the ANC and the due performance of its duties”. So, one could perhaps make a fancy legal argument that the NEC (while it was still validly in existence – and thus before the end of the December conference) could invoke this rule to postpone the conference with 6 months and to extend its own life with 6 months. But it is at best unclear whether the Constitution allows for this.

Obviously, if the conference collapsed, the NEC term would come to an end and it would no longer have this long-shot legal option as it would no longer be legally constituted.

I would guess the best option in such circumstances would be for the NEC to ask the conference to extend its term with, say, 6 months, during which time a special conference could be organised with the hope that no one challenges this legally uncertain extension in court. But if the conference collapses before this can be done, it is unclear from the ANC Constitution whether the NEC could extend its own term or whether this power could be implied. What is clear is that the power is not specifically granted by the ANC Constitution.

Another potential problem may arise if it becomes clear that the ANC Constitution and electoral rules were not followed by some branches when they made their nominations for the leadership of the party and when they selected delegates to attend the conference.

Disgruntled members may then approach the court to interdict the elective conference and to prohibit it from taking place until such time as all the illegalities with the process have been fixed. The losing side may also approach the court after the election of a new NEC to have the election declared invalid. In both cases the term of the old NEC would have come to and end but there will not be a new NEC in place to fix the problem or organise new elections.

The Ramakatsa judgment makes clear that if irregularities did occur and can be proven, the court will have to intervene, and the conference will have to be postponed or its elective results nullified.

It may well be that none of these issues will arise and that a new NEC will be elected in December without any problems. But if any of the problems mentioned above arise, it would ironically be the courts who would be best placed to fix these problems.

In such a case ANC members or branches could approach the court and ask the court to legalise what otherwise might have been illegal. For example, they could argue before a court that the collapsing of the conference infringed on their section 19 rights to make political choices, which includes the right to participate in the activities of the political party of their choice.

Once the court has rule that the applicant’s rights have been infringed, the court can make any order that is just and equitable to vindicate the rights of applicants. This could include an order to extend the life of the NEC with 6 months, to allow the NEC to arrange another elective conference within the 6-month period, or for any other arrangement that would allow the party to elect new leaders in a manner that protects the rights of members to participate in the activities of the party.

Which means that if all else fails, the courts will have to protect the rights of party members and will have to fix the problem which might have been created by some members not adhering to the rules and the Constitution of the party.

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