Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
14 November 2012

In a democracy the court of public opinion is king

Maybe even some ANC leaders are becoming embarrassed about the unlawful splurge of public funds on the renovation of President Jacob Zuma’s Nkandla homestead (also sometimes referred to as a “compound” by people who do not work at the SABC). How else could one explain the decision by the ANC caucus in Parliament that it would flout the Constitution to “block” debate on a motion of no confidence in President Zuma which was instituted last week by 8 opposition parties?

The parties claimed that under Zuma’s “leadership the justice system has been politicised and weakened; corruption has spiralled out of control; unemployment continues to increase, the economy is weakening, and the right of access to quality education has been violated”.

Ironically, the move was triggered by the decision of loyal ANC member and occasional Deputy Speaker of the National Assembly, Nomaindia Mfeketo, who ordered Cope leader Mosiuoa Lekota to withdraw critical statements he had made about Zuma. Mfeketo justified her ruling by saying that Lekota should have brought his allegations about Zuma’s nefarious activities to the Assembly by way of a substantive motion.

Opposition parties called her bluff by tabling just such a substantive motion of no confidence in Zuma in terms of section 102(2) of the Constitution. Although the motion would almost certainly be defeated (given the ANC’s large majority in the Assembly and the fear of its MPs of being fired), debating the motion would allow opposition parties to do the job that they have been elected to do. It would create a platform for debate about President Zuma’s flaws as well as his possible redeeming qualities (if any). It would then also allow Lekota and others to make statements about the Nkandla scandal and President Zuma’s alleged politicisation of the criminal justice system.

But it appears that the ANC is trying to avoid talking about the Nkandla scandal and about President Zuma’s possible flaws because it fears it might lose the argument and with it the votes of members of the electorate disgusted by self-enrichment, corruption, lack of service delivery, the shambolic education system and the politicisation of the Police and the National Prosecuting Authority. They might also fear that such a discussion would remind voters that three different courts had found that criminal fraudster Schabir Shaik had paid bribes to Zuma and that Zuma did favours for Shaik in return.

Enters ANC intellectual and Chief Whip, Mathole Motshekga, to announce that the ANC caucus had decided to “oppose the programming of this motion on the order paper” so that it would not be discussed at all:

There was unanimous agreement that this is a frivolous motion, which has nothing to do with Section 102 and Section 89 of the Constitution of the Republic of South Africa, which deals with the removal of the president from office. The motion of the opposition about the alleged violation of the Constitution by President [Jacob] G Zuma is without foundation and cannot be supported by fact…. The motion by these opposition parties, which they know as anyone else its chances of success are zero, seeks to try the president in a court of public opinion and tarnish his image and that of the ANC in the media.

One assumes that the ANC wants to use its majority on the Programme Committee of the National Assembly to stop the motion from being discussed in the Assembly at all. The only problem is that the Programme Committee does not have the power indefinitely to stop a motion of no confidence from being placed on the order paper for discussion.

Section 102(2) of the Constitution allows the National Assembly to debate and pass a motion of no confidence in the President by a simple majority of 200 of its members. Moreover, the Constitution does not allow a Committee of Parliament to block such a motion from being discussed. As I will point out later, to allow a Committee of the Assembly to block deliberation and debate on one of the most pressing political questions in South Africa – whether Zuma is fit to be President – is to undermine Parliament and rob its of its raison d’être.

If the motion is passed, the President and the other members of the Cabinet and any Deputy Ministers would have to resign. The National Assembly therefore does not only appoint the President: it can also fire the President. In our quasi-Westminster system the government needs to retain the political confidence of the majority of members of the National Assembly and if it does not, the government falls and another President must be elected or (if that is not possible) a new election must be held. Usually such a motion would only be passed if the majority party had lost confidence in the President (as would have happened with Thabo Mbeki if he had not resigned), when sufficient MP’s from the majority party rebel against its leaders or when a coalition government disintegrates.

This vote of no confidence is not the same as a vote to impeach the President in terms of section 89 of the Constitution. One can only impeach a President with support of a two-thirds majority of Assembly members and then only if there is objective evidence that the President is guilty of a serious violation of the Constitution or the law; serious misconduct; or inability to perform the functions of office. Unlike impeachment, a motion of no confidence is instituted not based on proven facts about the President’s misdeeds, but on the basis that some members of the National Assembly want to test whether the President still retains the political loyalty of a majority of its members because he is unpopular or just a bumbling fool.

I assume the honourable Motshekga was too busy studying ancient tracts by the Pandectists (or perhaps more modern texts by Alain Badiou, Edward Said or Mahmood Mamdani) to take time off to acquaint himself with the distinction between these two sections of the Constitution. If he did, he would have known that a motion of no confidence does not stand or fall on the basis of proven facts, but rather on political sentiment. Whether the Assembly retains confidence in the President is not a legal question to be determined by a court. It is a political question to be determined by politicians.

It is true that the Rules of the National Assembly allows the Programme Committee to organise its programme and to take decisions about what business should be prioritised. However, the Committee cannot indefinitely block a vote of no confidence in the President, as this is provided for by the Constitution.

If there was any doubt about whether the ANC could use its majority on the Programme Committee to stop any debate on the President’s alleged failings, the recent Constitutional Court judgment in Oriani-Ambrosini v Sisulu and Others put such doubt to rest. As Chief Justice Mogoeng Mogoeng reminded us, our constitutional democracy is:

designed to ensure that the voiceless are heard, and that even those of us who would, given a choice, have preferred not to entertain the views of the marginalised or the powerless minorities, listen. This power extends to all and must not, therefore, inadvertently or deliberately, be rendered hollow and inconsequential for those individual members of the Assembly who may wish to exercise it.

The Court was echoing the sentiments of Justice Sachs in Democratic Alliance v Masondo about the deliberative nature of the National Assembly:

[T]he Constitution does not envisage a mathematical form of democracy, where the winner takes all until the next vote-counting exercise occurs.  Rather, it contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered. . . . The open and deliberative nature of the process goes further than providing a dignified and meaningful role for all participants. It is calculated to produce better outcomes through subjecting laws and governmental action to the test of critical debate, rather than basing them on unilateral decision-making. It should be underlined that the responsibility for serious and meaningful deliberation and decision-making rests not only on the majority, but on minority groups as well. In the end, the endeavours of both majority and minority parties should be directed not towards exercising (or blocking the exercise) of power for its own sake, but at achieving a just society where, in the words of the Preamble, “South Africa belongs to all who live in it”‘.

Some might want to return our national Parliament into a rubber stamp in order to shield an obviously tainted politician from criticism and scrutiny. But as Chief Justice Mogoeng reminded us, the need to recognise the inherent value of representative and participatory democracy and dissenting opinions was largely inspired by our evil past.

South Africa’s shameful history is one marked by authoritarianism, not only of the legal and physical kind, but also of an intellectual, ideological and philosophical nature.  The apartheid regime sought to dominate all facets of human life. It was determined to suppress dissenting views, with the aim of imposing hegemonic control over thoughts and conduct, for the preservation of institutionalised injustice. It is this unjust system that South Africans, through their Constitution, so decisively seek to reverse by ensuring that this country fully belongs to all those who live in it.

These sentiments cannot be squared with the anti-democratic and quasi-authoritarian mutterings of the Chief Whip. It is astounding that Mr Motshekga wants to protect his leader from being “tried in the court of public opinion”. Democracy is based on the idea that politicians are tried in the court of public opinion. After all, public opinion determines elections.

If there was no court of public opinion, there would be no democracy. Political parties that embrace democracy and have no authoritarian tendencies ensure that the court of public opinion do not judge them (and their leaders) too harshly. (Hint: they try and elect leaders who do not appear to be corrupt and can run things, can inspire people and can get textbooks delivered.) If Zuma is found guilty of being a bad or even corrupt President in the court of public opinion, voters will turn away from the ANC. But he would only have himself to blame for not spending more time to convince the judges in the court of public opinion that he was a good and trusted leader.

It is called democracy and our National Assembly has a vital role to play in it, providing the space for debate and a platform from which politicians can try to influence the judges in the court of public opinion, who are none other than every potential voter in the country.

The only way to test whether the government retains the confidence of the majority of MPs (and whether voters should put their confidence in the governing party at the next election) is through debate and discussion — both inside and outside Parliament. A political party afraid of debate is a party afraid of voters and, finally, antagonistic towards democracy.

Perhaps it is also a party in need of a new leader and a new Chief Whip.

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