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
9 January 2008

Is the Speaker undermining our democracy?

The Times reports this morning that the ANC NEC plans to appoint Speaker of the National Assembly, Baleka Mbete, as head of the “political committee” to oversee the work of President Thabo Mbeki, his cabinet ministers, and that of ANC MPs. This decision, according to the Times, is expected to be ratified on Monday by the National Working Committee (NWC) of the ANC.

“We want to make sure that the party is in charge,” members of the executive told The Times. “The political committee [which Mbete will head] gives direction to parliament and to the cabinet. Everybody falls under it and no one is above it.”

If this is correct and if this decision is ratified by the NWC of the ANC on Monday, it is a troubling development indeed. Mbete was also elected to one of the top six positions in the ANC at the Polokwane conference, which was troubling enough.

The Speaker is a constitutionally created post in terms of section 52 of the Constitution, but the Constitution does not prescribe in detail the role a Speaker must play in the National Assembly.

The Speaker does have a constitutionally defined role in the passing of amendments to the Constitution and is also fourth in line to act as President in the event of the President being unable to fulfill his or her duties. But the Speaker’s role has evolved more through custom as derived from the original Westminster system than through constitutional fiat.

The Westminster system had evolved to such an extent that the Speaker of the British Parliament is widely seen as having to be independent and scrupulously impartial and is required to act in a completely even-handed way. This is to ensure that all parties in Parliament get an even chance to take part in its committee work and debates and will be able to hold the executive to account without intimidation from the majority party or the executive.

In apartheid South Africa the Speaker never fully fulfilled this role and always acted – at least in part – in cahoots with the majority National Party to shield its members and the members of the executive from too much scrutiny. It is therefore to be regretted that the drafters of our Constitution did not more clearly spell out the independent role required to be played by the Speaker in our National Assembly.

When South Africa became a democracy in 1994 and Frene Ginwala was elected as its first Speaker, she had, in effect, to make up the rules as she went along. Much of what the Speaker is supposed to do is now set out in the rules of the National Assembly that have been adopted and amended over the years by the sitting MPs, but the Speaker still has enormous discretion (and thus power) to make decisions affecting how the National Assembly operates.

In essence, the Speaker is the head of the National Assembly, and must ensure, first that in terms of day-to-day practical running of that institution Parliament functions effectively and cost efficiently. Second, she must ensure that all members of Parliament and all political parties are treated fairly in order for democratic participation to thrive and for members of the executive to be held to account without interference from members of the majority party in the National Assembly or from members of the executive selected from that majority party.

Frene Ginwala got off to a good start, but (as Andrew Feinstein’s book shows quite damningly) when the arms deal came along Ginwala did not play the role of independent and impartial arbiter. Instead she intervened on behalf of the ANC to prevent the execution of one of the decisions taken by the National Assembly that could have embarrassed the ANC and President Mbeki.

If Mbete is now made the head of the “political committee” of the ANC in Parliament, she will be both the Speaker of this institution and the ANC front person that will have to ensure that all MP’s and the members of the executive follow the ANC line from Luthuli House. In effect, she will be both referee and main goal scorer and it is very difficult to imagine that her role as head of the political committee will not influence her behaviour as Speaker.

This means that whatever Luthuli House wants to happen in Parliament (or at least the National Assembly) will happen, because their main enforcer will be the referee of that body and will be best placed to influence the working of the NA in such a way as to prevent any action by MP’s or members of the Executive not sanctioned by the ANC NEC.

The National Assembly thus runs the risk of becoming even more irrelevant and even more undemocratic than before. As the real power will reside with the ANC NEC and with Mbete and not with the MP’s elected by all of us to represent our interest, democracy will suffer. With this move it may easily look as if the ANC NEC is replacing the democratically elected Parliament as the final decision maker in all legislative and executive matters with itself.

Coup by committee, as it were.

Of course, the leaders of the majority party in any democracy must and should have some say in what happens in Parliament and in government. But by fusing the roles of main ANC enforcer with that of the Speaker of the National Assembly, the ANC seems to suggest that it (and more specifically its NEC) has absolute power to decide how we are ruled. This diminishes our democracy in a very serious manner and has the potential to completely emasculate the NA oversight role.

Intriguingly, in the short term this might not emasculate Parliament as much as I am predicting, and the NA’s oversight role might actually be enhanced because the people who are in charge of the Executive (headed by President Thabo Mbeki) are mostly not in the ANC NEC, having lost their positions at the ANC conference in Polokwane. But in the long term this move sets a very dangerous precedent that is bad for democracy and very, very bad for our Parliament.

Also worrying is the fact that this political committee is reported to be in charge of both what MP’s and members of the Executive do. Its installation with Mbete at its head would thus completely blur the distinction between the legislature and the executive, replacing both in effect with the ANC NEC.

Supporters of the ANC NEC will say that their party was voted into office by the voters and they can do what they want, but this would be to hold forth an extremely impoverished notion of democracy.

The new NEC was elected by 3900 delegates at Polokwane who was in turn selected by the very small percentage of voters who are actually members of the ANC (less than 2%). So people who vote for the ANC in 2009 will really be voting for those members of the NEC elected at Polokwane, but they will be told they are voting for members who will represent them and their interest in the National Assembly.

Alas, those members in the National Assmebly will represent the interest of the NEC, not the interest of the 10 million people actually voting for the ANC. Nominally this might be called democracy, but it places a dangerous amount of power in the hand of people never elected by anyone except a small band of party loyalists.

At the very least Mbete should resign as Speaker and take up the position of an ordinary MP. If she does not, she will be party to the severe if not fatal undermining of our democratic institutions which she professes to respect. This is not a trivial matter – like buying a fake drivers license, for example – and history will judge her and those NEC Zumaites harshly. But then again, by the time history fells its judgment it will be too late.

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