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.
ANC chairperson Gwede Mantashe has reportedly announced that the ANC top six had selected former defence minister Nosiviwe Mapisa-Nqakula as the next Speaker of Parliament. This again alerts us to the dangers of conflating the governing party and the state, and the corrosive effect this has on the quality of our democracy.
It is a foregone conclusion that the National Assembly (NA) will elect the ethically compromised former minister of defence Nosiviwe Mapisa-Nqakula as the new Speaker of Parliament in terms of Section 52(1) of the Constitution. This section states that the NA “must elect a Speaker and a Deputy Speaker from among its members” whenever a vacancy occurs.
While MPs in the NA will formally cast their votes to elect a new Speaker next week, they would have had no role in actually choosing the new Speaker. Instead, the Speaker was chosen by the top six leaders of the ANC, who were elected to these positions at the party’s national conference by just over 6,000 party delegates. By contrast, the 400 MPs who serve in the NA do so with a mandate from the 17.6 million voters who cast their votes for different political parties in the last national election. The election of the new Speaker by the NA will therefore be nothing more than the confirmation of a decision taken at the governing party’s headquarters.
On the face of it, the election of a new Speaker by the NA differs from other obligations that the Constitution imposes on the NA, and it is arguably less offensive for party leaders to play such a prominent role in this decision, than in some other decisions and processes of the NA — such as holding the executive accountable, selecting appointees to various constitutional bodies or passing legislation. But whether it was appropriate in this instance for party leaders to select the new Speaker or not (a question I return to below), it does raise the broader problem of the conflation of the governing party and the state — something that tends to occur when one party continues to win generally free and fair elections with little prospect of being voted out of power.
Specifically, it is important to ask whether the informal transfer of decision-making powers from Parliament to governing party leaders can ever be justified, given the fact that in such cases the “real” decision is not taken by the democratically elected Parliament in an open and transparent manner, but by governing party leaders (many of whom also serve in another branch of government), acting in secret and not subject to any of the procedural safeguards that apply to Parliament or other legal processes.
Those who may want to justify the practice of senior leaders of the ANC instructing their party’s MPs to support a specific decision or appointment to be taken by Parliament might argue that the top leaders of the party have a mandate from the 10 million people who cast their votes for the ANC in the last national election, as voters vote for parties, not individual MPs. They might also argue that it is necessary to impose strict party discipline on MPs who represent the governing party as this ensures stable and effective government and allows the government to implement its chosen policies in accordance with the expectations of all the voters who cast their ballots for the governing party.
Such defenders would have a point when they argue that an ANC electoral victory bestows a mandate on the governing party to govern, and that individual MPs from the governing party have a duty to support the implementation of this mandate and not to destabilise the government merely on the basis of personal or ideological disagreements with the governing party’s policies and programmes.
Given our electoral system, in which voters vote for political parties and not individual candidates, and given that the parliamentary system of government will only be stable if governing party MPs broadly support the policies, programmes and legislative initiatives of its government, appropriate mechanisms to enforce party discipline to ensure MPs provide such support (in accordance with the prescribed constitutional processes and procedures), cannot be faulted.
But it is necessary to add two important qualifications to this general principle. First, as I have previously explained, the Constitutional Court held in United Democratic Movement v Speaker of the National Assembly (the secret ballot judgment), that MPs have a constitutional duty to hold members of the executive accountable and to be guided by constitutional values in all they do. In the event of a “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”.
Second, MPs have a duty to respect and uphold the Constitution, and thus to perform their duties as members of Parliament in the manner prescribed by the Constitution. MPs cannot outsource this duty to outside parties. This means that while governing party MPs are subject to party discipline to ensure their general support for the policies, programmes and legislative initiatives of the government, they are not permitted to abdicate their responsibilities as elected representatives by acting under dictation from the ANC top six or the party’s Deployment Committee. Parliament, by its very nature, is a deliberative body and must make decisions in an open and transparent manner.
When the final decision on a matter is already taken elsewhere, any deliberation by MPs following such a decision becomes meaningless and Parliament stops being the democratic and deliberative space envisaged by the Constitution and becomes a rubber stamp. The Constitutional Court endorsed the view that Parliament is a deliberative body in several decisions dealing with the free expression rights of MPs, most prominently in Democratic Alliance and Another v Masondo (in a judgment penned by Justice Albie Sachs), where the court held:
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. 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’… Majority rule, within the framework of fundamental rights, presupposes that after proper deliberative procedures have been followed, decisions are taken and become binding.
This suggests that it would be impermissible for party leaders at Luthuli House to instruct their MPs in the NA to nominate specific candidates for appointment to Chapter 9 institutions or other bodies like the SABC board, because the NA is required to make such decisions in accordance with an open and transparent process, and only after engaging in the kind of deliberation envisaged by the Constitutional Court. When the deployment committee or top six leaders of the ANC instruct their MPs to support specific candidates for appointment to such positions, the decision is made in secret and is not subjected to the open and transparent deliberative process required by the Constitution.
The election of a Speaker could be said to be slightly different, as it is not preceded by an open and transparent deliberative process. A Speaker is elected by members of the NA in a secret ballot, in the same manner as the president. (Unlike the governing party’s candidate for president, which is usually explicitly endorsed by voters in a national election as the leader of the party, voters do not know who the governing party will nominate as Speaker.) In either case, one could argue that an instruction by top ANC leaders to ANC MPs to support a pre-selected candidate is of less concern, because MPs vote by secret ballot and governing party MPs could therefore ignore the instruction of the top six and vote for another candidate.
Assuming, for the moment, that this is correct, it does not address the problems with the decision by the ANC’s top six to select Mapisa-Nqakula as the new Speaker. The problem is not only that the decision shows contempt for Parliament by imposing a failed (and fired) Cabinet minister on the NA as its new Speaker, reinforcing the perception that the governing party does not fully recognise the separation of powers between the legislature and the executive.
Of more concern is that Mapisa-Nqakula is facing allegations that she received cash and gifts totalling R5-million from a South African National Defence Force contractor while she was minister of defence, and that she was called to appear before the Joint Defence Portfolio Committee at the end of May to respond to allegations of corruption.
Mapisa-Nqakula’s “election” as Speaker will now make it close to impossible to continue with this process, thus thwarting the ability of MPs to hold her accountable for her actions as a member of the executive as they are constitutionally required to do. While committees have broad powers to summon individuals (whether they are serving ministers or not), it is hard to imagine that her new position will not be used formally or informally to protect her from parliamentary scrutiny.
In a competitive democracy, a governing party would almost certainly not have forced a failed and ethically compromised minister like Mapisa-Nqakula on the NA as its new Speaker, because the party would have feared the move would anger voters. But in a one-party dominant democracy like South Africa, governing parties tend to be unafraid of voter anger because they believe their electoral dominance will not be affected by such decisions. None of this will change because of the elaborate argument advanced in this column. In fact, little is likely to change unless the party loses its electoral dominance and faces eviction from government.BACK TO TOP