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.
In his usual manner President Thabo Mbeki spoke in riddles in his state of the nation address when talking about the Scorpions, but for the press it seemed clear that he was not following the orders from Luthuli House and that he was against the disbanding of the Scorpions.
That was until the Minister of Safety and Security, Charles Nqakula stood up in Parliament and announced that the Scorpions will indeed be disbanded. According to the Mail & Guardian this statement came after a Parliamentary caucus meeting in which ANC members were instructed to toe the Polokwane party line. The newspaper suggested that Nqakula had one eye on his future when he went out and made a speech that seemed to contradict that of his boss – President Mbeki.
This double speak coming from government reveals at least three troubling things.
First, the two centers of power – one in government and one at ANC headquarters at Luthuli House – is creating havoc and confusion and is weakening President Mbeki’s hold over his cabinet. It was perhaps inevitable that some politicians would care more about their jobs than their constitutional responsibilities and would not mind taking orders directly from Luthuli House instead of adhering to their duties as government leaders. But it is creating confusion and undermining coherent government.
Second, the two centers of power is leading ANC leaders into dangerous territory and it may well undermine our democracy. Section 92 of the Constitution makes clear that Members of the cabinet are accountable collectively and individually to Parliament for the exercise of their powers. This means that once the cabinet has decided something, members of the cabinet have to speak with one voice and have to defend and execute the cabinet policies.
Individual Ministers cannot take orders directly from Luthuli House. In as much as ANC leaders in Luthuli House thinks that they can issue orders to members of the cabinet, they are undermining the Constitution and replacing the will of the people with the will of a few thousands delegates at Polokwane.
The reason is clear.
We have not voted for the leaders in Luthuli House (only about 4000 ANC delegates voted for them). But about 15 million people voted for the members of the National Assembly and it is to this National Assembly that the executive is mostly accountable. The fact that some ANC leaders elected by 4000 Umshini Wami- singing ANC delegates at Polokwane think that they are now in charge is deeply troubling.
It is troubling (and very dangerous) that some in Luthuli House thinks that they can direct members of Parliament and the Executive directly on what to do because it seems to place the Party above the Constitution and above the electorate. It is fundamentally undemocratic and must be stopped.
It is important that the cabinet meet as soon as possible to discuss the way forward with the Scorpions and make a clear announcement to demonstrate that it takes its constitutional obligations seriously. If it decides to follow the decisions of the ANC leaders, then so be it. But this confusion is not good for our democracy.
Third, it is clear that President Mbeki is not blameless in this saga. His habit of speaking in riddles and his dishonest evasions and strange obfuscating ways, contributes to the confusion and fear among his Ministers because it is difficult foir them to know what is really happening and what he is thinking. What once was lauded as his masterful, nuanced, playing of the political game, now just looks weak and dishonest. If he wants to save the Scorpions he should say so clearly and he should instruct his Ministers accordingly.
If the Ministers do not agree with him they must resign or be fired. But this will never happen because President Mbeki seems incapable of taking such bold action. In the past he has played off Ministers against each other – which kept them weak and prevented them from becoming a threat to his power, but which now allows them to undermine his authority.
This sorry saga teaches us that even in politics it is sometimes better to be clear about what one means and to speak honestly. Failure to do so will come back to haunt you and will allow a situation in which your own ministers starts contradicting your evasive words because they start fearing you less and the guys in Luthuli House more.BACK TO TOP