Quote of the week

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.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
4 June 2007

On Warlords and democrats

When Graham Brady, the Conservative Party’s Europe spokesperson, quit the front bench of the Party last week in protest at policies adopted by the Tory leader, David Cameron, I received an email that rhetorically asked: “Who are the MPs for Khutsong, and why have they not resigned yet?”

Of course, Mr Brady did not resign from the UK Parliament – merely from the front benches of Parliament. The MP’s for Khutsong would have had to resign as cabinet Minister or Chief Whip to have acted in a comparably manner than Mr. Brady.

Nevertheless, the implicit question remains: why do South African politicians never resign any position of power as a matter of principle. Why did no ANC cabinet ministers resign, for example, about the HIV/AIDS fiasco six years ago or when Jacob Zuma was fired or when South Africa decided to support Robert Mugabe?

There are several answers to this question. One is that our MP’s are so wedded to their political parties that they would never speak against their own – a bit of the Hansie Cronje syndrome.

A second reason is that MPs are not directly elected in constituencies and are therefore beholden to party bosses. If they resign in a fuss from cabinet, they will soon be kicked out of the National Assembly as well. Before they know it they will be redeployed as South Africa’s ambassador to Tjikitjikistan. In Britain, if you resign a cabinet post you go back to being an ordinary MP, but you retain some independence because the party cannot kick you out of Parliament – only your constituents can.

Having a constituency system also has other advantages. MPs who actually serve a constituency, must try and please their constituents and will therefore generally be far more responsive to the needs of the electorate than MPs selected by party bosses. Given this obvious advantage, one has to ask: Why is it that the ANC does not want to bring back some form of the constituency system?

The traditional argument is that the party bosses (i.e. Thabo Mbeki and Co) do not want to lose their power over the MPs. If one has a list system of proportional representation, the party and not the electorate decides who becomes MPs.

But recently some ANC people whispered into my ear that there is another reason for sticking to the list system. There is a real fear, according to my source, that independent constituency MPs will become a force onto themselves and would act like Warlords. This would then eventually destroy the ANC.

According to this view, all that holds the various factions of the ANC together and the only moderating force on the ANC is the Central Party structures. If one devolved matters to individual constituencies, demagogues and anti-democratic forces will take over. Without the instructions from head quarters, there would be no more gay rights and no more capitalism. And there would be far more renaming upheavals and other forms of populist politics. Think an ANC version of George Galloway!

These musings prompted another friend to ask: But what happens when the Warlords take over head office? My answer: we will have to wait until December to see!

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