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
6 April 2021

Is it possible for the ANC to fix the way in which the party elects its leaders?

Last week the Supreme Court of Appeal (SCA) declared the 2018 Free State provincial conference of the African National Congress (ANC), as well as the election of the provincial leadership at this conference, unlawful and unconstitutional. This obviously raises questions about the integrity of internal ANC elections (including the 2017 election of partv leaders at Nasrec), and about the role that courts ought to play in safeguarding the right of members of political parties to participate in party elections.

Political parties in South Africa do not provide for the direct election of their party leaders or of their candidates standing for election to public office at national, provincial or local government level. Instead, political parties generally provide for the indirect election of party leaders and candidates for public office in terms of rules set out in the respective Constitutions of the political parties.

For example, the ANC Constitution provides for the election of national party leaders at a national conference, by about 5000 delegates, 90% of which are selected at “properly constituted Branch General Meetings” (MGM). A similar provision applies to the election of ANC provincial party leaders at a provincial conference. The Constitution of the Democratic Alliance (DA) provides for a slightly more complicated procedure for the election of office bearers by delegates at a national conference, with about half of these delegates coming from the ranks of the party’s members of parliament, provincial legislatures and municipal councils, and 45% elected to represent the party’s branches.

Because politics is not only about who decides, but also about who decides who decides, the integrity of such indirect elections will partly depend on the integrity of the process through which branch delegates is selected. When groups or factions manage to manipulate the system to prevent the selection of delegates from an opposing camp or to increase the number of delegates from their own camp, the integrity of the election is fatally undermined. (Sometimes the rules themselves are designed to ensure that party bosses retain some control over who is selected at delegates – as illustrated by the process followed by the DA – but this is a discussion for another day.)

Normally, the courts will not get involved in the internal matters of a political party. Although section 19 of the Constitution 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; and to campaign for a political party or cause“, the Constitutional Court pointed out in 2012 in Ramakatsa and Others v Magashule and Others that the section does not spell out how members of a political party should exercise the right to participate in the activities of their party.

For good reason this is left to political parties themselves to regulate. These activities are internal matters of each political party. Therefore, these parties are best placed to determine how members would participate in internal activities. The various Constitutions of political parties are instruments which facilitate and regulate participation by members in the activities of a political party.

However, the Court further held that the section 19 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”. Based on this principle, the ANC’s Free State provincial conference has been nullified on three separate occasions, most recently by the SCA last week in the case of in Ramakatsa and Others v African National Congress and Another. (The court has also nullified other ANC provincial conferences, including the 2015 KwaZulu-Natal elective conference.)

In the most recent Ramakatsa case (not to be confused with the 2012 judgment brought by an applicant with the same surname), the SCA held that a re-run of the Free State provincial conference previously ordered by the High Court, had not complied with the ANC Constitution and other rules, because no audit was undertaken of all branches to verify their membership, because some BGM were never held, and because some BGM’s were held without inviting all branch members. It is therefore likely that the voting delegates who eventually attended the provincial conference did not accurately reflect the views of ANC members in the province.

In cases like this, where some of the very basic procedural requirements for the selection of delegates to an elective conference were not met, it will not be too difficult for a court to intervene and to nullify either the selection of delegates or the outcome of the conference. This is because these kinds of irregularities are not too difficult to prove and are clearly in conflict with the ANC Constitution and other applicable rules.

But it will be far more difficult for a court to intervene in other forms of manipulation of aimed at influencing the outcome of an elective conference. For example, back in 2011, then Secretary General of the ANC, Gwede Mantashe, warned against forms of “gate-keeping”, where regional power brokers prevent some individuals from joining the party because of suspicions that they supported the “wrong” camp”. Before the last elective conference, some members in good standing were also refused entry to BGMs because they were known to support the “wrong” candidate.

But the easiest (lawful) way to manipulate leadership elections in which branch delegates play a pivotal role is by inflating the membership and the number of branches through the bulk buying of membership. A donor would pay for the membership of several hundred or thousands of branch members, and these new branches would be controlled by one faction (also using “gate-keeping” when necessary) to ensure that the delegates sent from those branches supported the candidates of one or the other faction contesting for election.

Of course, manipulating the process (in either a lawful or unlawful manner) to increase the number of delegates for your slate of candidates, may all come to nought, because of vote-buying. While delegates are selected on the understanding that they support certain positions and candidates, the leadership election is done by secret ballot and delegates may therefore be persuaded to change their votes in exchange for money or other benefits.

Rumours of vote buying by both camps contesting for positions at the Nasrec conference have been circulating widely, fuelled by the claim first made by Robert McBride that money from South African Police Service (SAPS) contracts at inflated prices went towards buying votes for the Nkosazana Dlamini-Zuma camp at the national conference in 2017. The rumours intensified after it was revealed that the Ramaphosa campaign had spent almost R1 billion on the CR17 campaign.

If the outcome of ANC elective conferences are indeed influenced by vote-buying, or by the manipulation of the organisation’s membership, or the selection of branch delegates, the outcome of such elections may not reflect the views of the majority of the bona fide card-carrying members of the organisation. If this is so, it would mean that not all members of the organisation are able to participate in an equitable way in the activities of the party, and – arguably – that this infringes on the section 19 rights of those members who have, in effect, been disenfranchised.

But the problem does not only affect disenfranchised ANC members. Because the ANC is currently the governing party and still electorally dominant, who the party elects as president has a profound impact on the entire society. On the assumption that a fair electoral process, that produces an outcome reflecting the will of the majority of party members, is likely to lead to the election of a higher quality President, all South Africans have an interest in improving the method through which the ANC elects its leaders. (I do not think this assumption is valid for all or even most political parties here and elsewhere, but for reasons I do not have space to engage with here, I suspect it may be valid for the current ANC.)

Despite this, any reform of the process to elect its leaders will have to come from within the ANC, as it remains a voluntary association who enjoys a wide discretion on how to regulate its affairs.

But if there are such reformers inside the ANC, the first problem they might encounter is that it is not obvious how to fix the problem to ensure that leadership elections more or less reflect the view of the majority of the bona fidemembers of the party. The obvious solution would be to institute a direct election by party members, allowing every party member to cast a single ballot for the candidate of their choice – at least for the “top 6” positions. (The United Kingdom Labour Party uses this system for the election of its leader.)

For practical reasons, this system would not be easy to implement in South Africa. Using postal ballots may run into difficulties as no one is going to trust the Post Office to actually deliver the ballots. Using an online voting system will exclude ANC members without access to the necessary technology. And using an in-persons voting system would be a logistical nightmare.

But even if these practical difficulties could be overcome, other questions would remain. The system would not prevent groups from buying bulk memberships and then finding a way to get these new (but maybe ghost) members to vote. As the system would not be focused on branches, it would also be far easier for new members to join the party without having to attend branch meetings. Such a system will therefore leave the party vulnerable to entryism, allowing other political groups to join the ANC with the specific purpose of influencing the leadership election. For example, the DA or the EFF could quietly get their members to join the ANC to vote in such a direct election, either for a candidate they think will be unpalatable to voters, or for a candidate they believe share some of their values and political goals.

Another solution would be to introduce effective checks and balances into the existing system to reduce fraud and manipulation. But this would require a highly efficient and non-factional enforcement body inside the ANC to oversee the process and enforce the rules, something that seems unachievable. More checks may also slow down the process and may make it very difficult to run such an election. Even then, once the delegates arrive at conference, the likelihood of vote buying would again rear its head.

I believe this is an important issue that speaks to the quality of our democracy, an issue that requires further reflection. There may be other ways of improving the system to ensure that leadership election outcomes more or less reflect the views of the majority of the members of the party. I would invite others inside and outside the ANC with an interest in this to advance proposals that may be more workable than the one’s I have been able to think of.

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