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.
It is understandable that members of the chattering classes as well as other members of the public (including many rank and file members of the ANC yearning for a, perhaps mythical, simpler time when ANC Youth League members behaved properly and listened to their elders) on Saturday applauded the verdict of the ANC National Disciplinary Committee of Appeal (NDCA) which confirmed the guilty verdict against Julius Malema.
It could not have hurt that the verdict was delivered by a confident and in charge Cyril Ramaphosa, who reminded us again why so many of us have regretted the fact that he lost out to Thabo Mbeki when Mandela’s ANC had to appoint a Deputy President and why some of us still wistfully wonder what might have been if he had become our President instead of either Thabo Mbeki or Jacob Zuma.
Although some newspaper editors might miss Malema (given the fact that he has the ability to make news and sell newspapers), most of us might feel slightly relieved that this hypocritical demagogue has been dealt with so effectively and seemingly so decisively by the ANC senior leadership.
Yet, there is something about the way in which Jacob Zuma and Gwede Mantashe managed to clip Malema’s wings that sits uneasy with me. If they could do it to him, I wonder, could they do it to anyone else – including every single one of us who are members of the chattering classes and sometimes mock or criticise our dancing and singing President and every single ANC member who fails to toe the party line or who speaks out against the abuse of power or incompetence by some members of the leadership?
Is there not just a whiff of Stalinism about the way in which Zuma and Matashe got rid of a political enemy? Can we expect the pictures to be airbrushed next so that Malema will disappear completely from official ANC history?
Recall that Malema was convicted on three charges, two of them having been confirmed by the NDCA. First, he was convicted of contravening Rule 25.5 (1) of the ANC Constitution “by behaving in such a way as to provoke serious divisions or a breakdown of unity in the organisation”. His sin was that he addressed a press conference on 31 July 2011 at the conclusion of an ANC Youth League NEC meeting where he said amongst other things “in the past we know President Mbeki used that agenda very well …. The African agenda is no longer a priority and we think that there is a temptation by the coloniser and the imperialist to want to recolonise Africa in a different but sophisticated way and President Mbeki stood directly opposed to that type of conduct.”
The NDC found that through his utterances Malema sought to portray the ANC government and its leadership under President Zuma in a negative light which therefore had the potential to sow division and disunity in the ANC. The NDCA confirmed the reasoning of the NDC. The implications of this verdict are rather stark. Any ANC member who now suggests that an out of favour former President may have done some good and that he might have been better than an incumbent leader can now be kicked out of the Party for contravening Rule 25.5(1). If this principle had been applied consistently in the past, Mbeki would have been able to get rid of Zuma and most of his opponents long before the votes were counted at Polokwane. To his credit, he never used such tactics against them.
The verdict comes perilously close to suggesting that no ANC member will henceforth be allowed ever to criticise the incumbent ANC leadership in public. This is a rather handy precedent to set if one intends to stand for a second (or third) term in office or if one wishes to “manage” future leadership elections. To my mind the ruling on this point seems profoundly undemocratic and deeply dangerous and both ANC members and other members of the public should feel more than a bit worried about this move. One should not confuse approval for the outcome of this case (silencing Malema) with what is good for the ANC and South Africa and if one does, one underestimates the possible ruthlessness of the current bunch of ANC leaders aiming to secure a second term for themselves at Mangaung.
Malema was also convicted of contravening Rule 25.5 (c) of the Constitution of the ANC by behaving in such a way as to bring the organisation into disrepute. This was done for ostensibly slightly more plausible reasons, namely because he addressed a press conference on 31 July 2011 by making announcements amongst others:
Now, imagine, for a moment that the statement did not relate to Botswana but to Zimbabwe and that Zwelenzima Vavi had made it and not Malema. Imagine Vavi had said that Robert Mugabe and his Zanu-PF had ruined Zimbabwe and that Cosatu would mobilise ANC members to oppose the murderous regime in Zimbabwe and to unite opposition forces in that country to try and oust Mugabe. If the Zuma and Mantashe had then proceeded to discipline Vavi and if he was then suspended from the ANC, would we all be cheering this on as we are doing with the Malema case?
Surely ordinary ANC members (yes, also those who helped to get rid of Thabo Mbeki at Polokwane, ostensibly because of his dictatorial tendencies) should feel more than a bit uncomfortable by the manner in which Malema had been dealt with? I ask again: will there be other casualties and will the same principles be used to get rid of other opponents who do not shut up? Will they go after Matthews Phosa? Will they go after Kgalema Motlanthe if he ever grew a backbone and actually indicated that he was interested in presidency of the ANC? Will they go after our charming, but arch-opportunist, Tokyo Sexwale, for showing rather too much ambition?
And should this not all be read against the background of the pending suspension of a senior NPA prosecutor, reportedly because she refused to drop charges against crime intelligence boss Richard Mdluli who is said to enjoy protection from “right at the top”? Remember that last year a secret report prepared by Mduli was leaked to the newspaper and that this report claimed that various ANC leaders met in January 2010 in Estcourt, KwaZulu-Natal to plot the ouster of Jacob Zuma. (Why crime intelligence was involved in such a story is unclear as it is perfectly legal in a democracy for political contenders within a party to plot against each other – as long as they use only legal means.)
Key members of the group that is said to have met are KwaZulu-Natal provincial premier Zweli Mkhize and Human Settlements Minister Tokyo Sexwale.
Remember also that the Secrecy Bill has just as much if not more to do with attempts by the intelligence agencies (firmly under the control of Zuma and Mantashe) to protect their agents and to prevent any exposure of their – legal or illegal – activities which we now know (thanks to Mduli) also focus on the succession race inside the ANC.
It might be that Malema is a special case and that the extraordinary precedent set by this disciplinary case against Malema will not be used against other critics of the current ANC leadership or against anyone who dares to show any ambition to take over the job of President or Secretary General of the ANC. But do not count on it.BACK TO TOP