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.
The democratic nature of South Africa’s constitutional system is predicated on the existence of relatively strong, ideologically coherent, internally democratic, relatively corruption free, open and accountable political parties. Section 1(d) of the Constitution underlines this by stating that South Africa is founded, amongst other things, on the following values: “Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”
Other sections of the Constitution require us to vote for political parties (and not for individual candidates) and these political parties ultimately decide which of their members will serve in the National Assembly and the National Council of Provinces. Moreover, it is a selected group of members of the majority party who elects its leader who will then, in turn, be elected as President of the country by the members of the majority party deployed to serve in the National Assembly. This means that ordinary voters have little influence on who serves as President of the country. (At present this task is delegated to about 4500 carefully selected delegates to the ANC elective conference.)
The system is further predicated on the (often fictional) set of assumptions, namely that political parties will produce a set of ideologically coherent policies and principles before each election and that voters will vote for the party of his or her choice, partly based on these policies and principles and partly based on whether they trust, admire or respect the leadership of the political party of their choice (a leadership which they never elected, but which was elected for them by carefully selected members of the political party).
For example, the vast majority of DA voters living in the Western Cape, a Province governed by the DA and its leader Helen Zille, would have had no direct say in the election of Helen Zille as Premier of the Western Cape or in the selection of her cabinet members. Neither did they have any direct input into the policies adopted by the party before the election, nor into the way the province is being governed from day to day. As far as I can tell, Helen Zille and the band of merry men around her make most of the big decisions on governance which are then ultimately implemented by the provincial executive. It is unclear what role the DA members and its broader leadership (including its Parliamentary leader) play in formulating policies that might guide the governance of the Western Cape.
The South African Constitution is silent on what the appropriate relationship should be between the political party in government (at national or provincial level) on the one hand, and its elected representatives in the legislature and its leaders in the executive on the other. However, the Constitution does require the members of the legislature and the executive (at both national and at provincial level) to exercise their powers in the manner and form dictated by the relevant provisions of the Constitution. For example, the President is required to apply his or her mind to a relevant matter and then to make his or her own decision when he exercises his powers as head of state or as head of the executive.
In President of the Republic of South Africa and Others v South African Rugby Football Union and Others the Constitutional Court confirmed this principle, stating that when the President acts as head of state or head of the executive, he cannot “abdicate” the exercise of such a power by unlawfully delegating that power conferred upon him or her or by acting “under dictation”. This means when exercising his powers as President, Jacob Zuma cannot merely follow the instructions of the ANC National Executive Committee (NEC). He is constitutionally obliged to apply his mind to the issue at hand and then to make a decision. Of course, when doing so, he will be guided by the policies and values of the ANC.
The same principle applies to all other members of the cabinet. Cabinet Ministers are required to manage their individual portfolios and are required to take the day-to-day decisions about the running of their Departments, guided by the policies and values of the political party they represent. But they cannot take instructions from the political party and its NEC, as that would mean that the NEC – which was never (either directly or indirectly) elected by the voters – would in effect be running the country outside of the constitutional structures and procedures prescribed by the Constitution. This would undermine the Constitution and would be profoundly undemocratic as the checks and balances and other safeguards on the exercise of power contained in the Constitution would become completely illusory.
If the NEC were to give direct orders to the President or his cabinet members on how to run their Departments, a body which was elected by just over 4000 carefully selected ANC delegates at Polokwane would in effect take over the running of the country and real power would reside in that body and not in the constitutional structures. The Constitution itself would then become no more than a piece of paper to which individuals pay lip service while the real decisions are taken by an essentially undemocratic and unelected body – the NEC of the ANC.
Of course, this does not mean that the President and his cabinet could completely ignore the views of the members of the ANC and especially its NEC. They need to retain the support of the ANC and the NEC to do their jobs effectively and to ensure that they are not removed from office (as President Thabo Mbeki was). This means that they will have to consider the views expressed by the NEC about policy issues and would also be wise to take heed of unhappiness inside the NEC about the manner in which any one of them are managing their portfolio’s. What they cannot do (and what they are not allowed to be seen to be doing) is to take direct instructions from the NEC as this would completely conflate the unelected leadership of the governing party with the elected representatives of that party in government. Party and state would become one and the same thing and the Constitution would be worth no more than the paper it is written on.
It is against this background that the announcement issued by Gwede Mantashe on behalf of the NEC of the ANC, following the four day Lekgotla of the NEC, should raise some concern. It is heartening to read that the NEC “dedicated some time on discussion of the Limpopo Book saga” (although “scandal” might have been a better word to use). It is also heartening to see that the NEC has recognised that this scandal is the symptom of a larger crisis. However, the NEC is then said to have agreed on the following:
1. A dedicated logistics team be established and be kept in place until the 2013 academic year.
2. The National Treasury was directed to work closely with department of Basic education, so that complaints about non-availability of resources are not used as an excuse. The NEC emphasised that throwing money at the problem be avoided.
3. The National Department must take full responsibility for purchasing and delivery of books even for the next academic year.
4. The verification of school that still have not received the books must continue
5. All the task teams that were set up to deal with the current book debacle must reconcile their reports and the Presidential task team must be the channel of reporting to the Presidency. Having received the preliminary report the Presidency has been asked to push for the final report. That final report should be the basis for any action to be taken, including action against any person found guilty of any misdemeanour.
The NEC is not constitutionally entitled to make decisions about forming government logistical task teams. Neither can they legally give directions to the Treasury to do or not to do anything. Nor can they instruct the National Department of Education to take full responsibility for the purchasing and delivery of textbooks.
One understands why the NEC issued the statement. When the President and his cabinet is incapable or unwilling to deal effectively with a scandal of national proportions (instead kicking for touch by appointing one task team after the other to “investigate” the problem), and if this complete breakdown in governance is beginning to hurt the image of the party, then the adults in the room will become nervous and will want to do something.
Constitutionally what is really required is for the NEC to correct the mistakes made by the Polokwane conference when it elected Jacob Zuma as President, despite the fact that he was never going to be any good at governing the country (although he obviously has other political talents). This could be done by ensuring that the cabinet is strengthened, perhaps by ensuring that the President and those ministers who are not performing are removed from office (they would remain elected officials of the ANC until the next conference in December).
This can be done in a constitutionally appropriate manner if the NEC was willing to adopt a vote of no confidence in the President and his cabinet, which would necessarily require the ANC members in the National Assembly to do the same in the National Assembly. The President and his cabinet would then have to resign. A mere threat of such action could have done the trick (as was the case with the removal of Thabo Mbeki).
The conflation of party and state reflected in the NEC statement might, ironically, stem from a laudable impulse, namely from the recognition that the President and the cabinet is not up to running the country and protecting the ANC from embarrassments such as the textbook scandal. It might also have been promoted by an eagerness on the part of some NEC members to do something about the disastrous mismanagement of the education system. But by purporting to issue instructions to members of the cabinet and to government, the NEC is completely conflating party and state and is setting a dangerous precedent that might eventually lead to a complete hollowing out of our democracy. When that happens, our votes will count for very little while the votes of 4500 carefully selected ANC members would in effect be what determined how we are governed.BACK TO TOP