As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Over the past few weeks, various ANC leaders testifying before the Zondo Commission on State Capture (including President Cyril Ramaphosa) struggled to explain why the party’s MPs failed to hold the executive accountable. While this failure can partly be ascribed to the stranglehold Jacob Zuma exerted over his party and the way he wielded this power to protect himself from the consequences of his actions, the system of checks and balances also makes it very difficult for governing party MPs to fulfil their constitutional oversight and accountability duties effectively.
Last week Parliament’s Portfolio Committee on Mineral Resources and Energy voted against a proposal to launch an investigation into how bids were awarded for a multibillion-rand programme to fast-track new power production. This follows various media reports of alleged corruption and/or tender rigging in the awarding of the tender for the provision “emergency electricity”. Ironically, this happened in the same week that President Cyril Ramaphosa, testifying before the Zondo Commission, claimed that the ANC had turned over a new leaf and suggested that its MPs will do better at holding the executive to account.
In the light of the portfolio committee’s decision last week, Ramaphosa’s reassurances ring hollow. But it is perhaps not surprising that the ANC MPs on the Portfolio Committee on Mineral Resources last week toed the party line by blocking an investigation into alleged corruption. This is because the 2017 ANC constitution imposes strict party discipline on its elected representatives, making it a disciplinary offence for them to defy a decision by the caucus or other resolutions or policies adopted by the extra-Parliamentary leadership of the party.
Section 5.4 of the ANC constitution states that ANC members who hold elective office are required to belong to its caucus and to function within its rules and to abide by its decisions “under the general provisions of this constitution and the constitutional structures of the ANC”. Section 25.3 further provides for the disciplining of any elected representative who “fails, refuses and/or neglects to abide by the provisions of the constitution of the ANC, its standing orders, rules, regulations, resolutions and policies adopted or made in terms of the constitution”. (The DA’s charter constitution contains milder versions of these provisions in sections 188.8.131.52 and 9.3.5 of its charter.)
As the ANC caucus is subject to instructions (some call it “guidance”) from Luthuli House – as illustrated by Gwede Mantashe’s instruction to the ANC caucus in the National Assembly to vote for the establishment of an impeachment inquiry into the fitness of Public Protector Busisiwe Mkhwebane to hold office – these provisions of the ANC constitution suggest that ANC MPs will only be able to hold members of the executive accountable if the senior leadership of the party allows them to do so. We can call this the turkeys voting for a Christmas problem.
No wonder then, that ANC MPs consistently protected Jacob Zuma from scrutiny when he was president of the country, and often vigorously defended and protected him and other members of the executive accused of maladministration, abuse of power and corruption. The ANC leadership under Zuma demanded this, and MPs obliged, perhaps in part because they see themselves as disciplined members of the organisation, and in part because they knew what the likely consequences would be if they did not. (It must be noted that governing party MPs have not appeared to be particularly eager to hold Ramaphosa and other members of his Cabinet accountable either.)
A case in point is that of former ANC MP Makhosi Khoza, who testified before the Zondo Commission that after she vigorously questioned Dudu Myeni about her plans for the SAA, she was invited to lunch with Des van Rooyen and Pinky Kekana, where Van Rooyen told her she was “counter-revolutionary” and asked why she had questioned “Comrade Dudu”. She said that she was told to never question comrades again. She was later removed from the Portfolio Committee and eventually resigned from the ANC.
Not only Jessie Duarte and Gwede Mantashe, but also (in a more subtle and nuanced manner) Cyril Ramaphosa countered criticism of the failure of ANC MPs to hold the executive to account, by pointing out that, at national and provincial level, South Africans currently vote for a political party and not for individual candidates, and arguing that ultimately the party and not individual MPs are accountable to the electorate. In essence, they argue that because we vote for parties and not individuals, we have a right to expect that the governing party implements its programme and policies. Consequently, governing parties must have a right to enforce party discipline to ensure that wayward MPs do not sabotage the implementation of the party’s programme and policies.
It is difficult to argue with the latter point, as there can be nothing wrong with the party in government enforcing party discipline to ensure that its MPs support the adoption of legislation tabled by the executive, as well as other important decisions aimed at implementing the policies and programmes of the governing party. But a distinction must be drawn between this obligation and the obligation of governing party MPs to hold the executive accountable.
While the principle is clear, it will be difficult to uphold it in practice as any decision about whether a matter relates to accountability or to the party’s policies and programmes is likely to be politicised (or perhaps one could say that such a decision will always be political).
This is not only because self-serving party leaders may insist that party MPs who criticise (or ask difficult questions of) their party leaders in government undermine the party leadership, and thus the party’s ability to implement its policies and programmes. It is also because “accountability” could be invoked by governing party MPs to justify politically motivated attacks on members of the executive who are members of other factions, while a decision not to hold someone accountable could be presented as a policy choice in line with the party’s policies and programmes.
For example, some ANC members who opposed a National Assembly decision to investigate Mkhwebane’s fitness to hold office, argued that she was being targeted exactly because she dared to hold Ramaphosa accountable while others argued that it was anti-black and therefore against the party’s policies to hold her accountable.
In United Democratic Movement v Speaker of the National Assembly and Others (the secret ballot judgment), the Constitutional Court nevertheless insisted that Parliament had a constitutional duty to oversee the performance of the president and the rest of Cabinet and to “hold them accountable for the use of state power and the resources entrusted to them” and must perform this duty “diligently and without delay”. It also acknowledged that this might lead to a conflict between the obligation of MPs to follow the party line and its obligation to hold the executive accountable, but held that “in the event of conflict between upholding constitutional values and party loyalty, [MPs] irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail”.
These remarks were made in the course of explaining why the Speaker may sometimes allow a vote of no confidence in the president to be conducted by secret ballot. However, secrecy is not an option when MPs fulfil their ordinary oversight and accountability obligations as members of portfolio committees or ad hoc committees. This places ANC MPs in a very difficult if not impossible position of having to choose between fulfilling their constitutional obligations or keeping their jobs.
As the Constitutional Court noted in United Democratic Movement v Speaker of the National Assembly and Others, ANC MPs “could be exposed to a range of reasonably foreseeable prejudicial consequences” if they act in ways that are perceived to be prejudicial to the president or other members of the executive, who happen also to be senior party leaders. This is because in our system MPs are beholden to their parties for their jobs.
Members’ fate or future in office depends largely on the party. The deputy president, ministers and deputy ministers who are also members of Parliament, are presidential appointees. The ruling party [sic] has a great influence on, or dictates, who gets appointed or elected as senior office-bearers in Parliament. Almost invariably the president – although not a Member of Parliament – is the leader of the ruling party… There are therefore institutional and other risks that members, particularly of any ruling party, are likely to get exposed to when they openly question or challenge the suitability of their leader[s] for the position of president.
This suggests that ANC MPs currently find themselves in an impossible position as they are constitutionally required to hold the executive accountable, while practically not being able to do so without risking their jobs. In the absence of the adoption of measures to provide (limited) protection for MPs who take their oversight and accountability obligations seriously, ANC MPs are therefore not likely to play their accountability role as envisaged by the Constitutional Court – even if they are willing to do so.
While I agree with Steven Friedman that changes to the electoral system are unlikely to lead to a drastic improvement in the accountability of MPs to the voters who elect them (a discussion for another day), a system that allows for the direct election of (say 300) MPs to Parliament in either single or multi-member constituencies, and provides that these MPs will retain their seats for the five-year term of Parliament even if they lose their party membership, might help to protect ANC MPs from the “range of reasonably foreseeable prejudicial consequences” who take their oversight and accountability obligations seriously.
Relying on the 2012 Constitutional Court judgment in Ramakatsa and Others v Magashule and Others, which held that the constitutions of political parties had to comply with the South African Constitution, it may also be possible to approach the courts to ask it to declare invalid provisions in party constitutions that impose an absolute ban on MPs acting in accordance with their conscience and their constitutional obligations in contravention of party or caucus decisions or instructions. Interestingly, section 184.108.40.206 of the DA constitution already provides for an exception to the requirement that its elected representatives must comply with all decisions of the official formations of the party, by stating that this is only required if non-compliance is unreasonable.
Of course, the most effective way to improve parliamentary oversight and accountability would be for voters to punish the governing party electorally if its MPs protect members of the executive from scrutiny. ANC MPs failed to hold its leaders implicated in State Capture accountable because they believed there would be no electoral consequences for their failure. I, therefore, worry that my modest suggestions for improvement may not make as much of a difference as I hope it would.
Until South Africa’s electoral politics become more competitive to the extent that ANC MPs and leaders fear that they will be voted out of office if they are seen to protect corrupt party leaders (something that cannot be achieved by amending the Constitution or by court fiat), Parliament is unlikely to perform its accountability function as envisaged by the Constitutional Court.BACK TO TOP