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.
As the National General Council (NGC) of the African National Congress (ANC) gets under way in a blaze of publicity – pre-match analysis by all the weekend papers, live radio crossings for the speech of the ANC leader, regular twitter updates, wall-to-wall coverage in this morning’s papers – it struck me again how ubiquitous political parties are in our society and how important they are for the proper functioning of the constitutional democracy in South Africa.
Yet, political parties – unlike almost all other institutions of public importance – remain essentially unregulated by law. It is a free for all, a free market so unbridled that it should make not only communists but even moderate social democrats blush. This is political cowboy capitalism of the worst kind. While mining companies, universities, old age homes and even sporting bodies are all tightly regulated, political parties are not regulated at all – neither by the Constitution or by ordinary legislation. I find this rather problematic. If I was President Jacob Zuma I might have said that this flies in the face of the need to instill “revolutionary discipline” inside political parties and is thus rather counter-revolutionary.
The South African Constitution has remarkably little to say about political parties. Section 1(d) does confirm that a multi-party system of democratic government is one of the founding values of our Constitution and political parties are mentioned elsewhere in the Constitution, but nothing is said about how political parties must operate and whether they should adhere to democratic principles in electing leaders or nominating individuals for election to the various legislatures.
Political parties can receive donations from anyone – whether it is Kim Ill Jung, Muammar Gadaffi, George Bush or Bill Gates – or any organisation – whether it is a company who hopes to score an arms deal contract or a lucrative investment deal or wishes to have the law amended to ensure that the regulatory framework in the country allows it to make bigger profits and exploit ordinary people even more.
Political parties can create investment vehicles, can start up their own businesses – who can bid for government tenders – and can spend the money they make in any way they wish. They can use the money to hand out food parcels before an election, ferry potential voters in flashy cars to lavish parties, pay for the services of Kwaito Stars and for brilliant lawyers to help keep their leaders out of jail.
Furthermore, the Constitution does not make clear exactly what the relationship between the party leadership, the legislature and the executive should be. Can the governing party dictate to members of Parliament what they should think, what questions they should ask, what amendments they must make to draft legislation and what legislation they must approve? Well, there is nothing in the Constitution to help us answer these questions. If delegates at Polokwane said they wanted to get rid of the Scorpions because it had a tendency to prosecute ANC politicians for corruption, well, so be it.
And what about the relationship between the governhing party on the one hand and the President and Cabinet Ministers on the other? Cabinet Members are made individually and collectively accountable to the National Assembly, but they can also be fired by the National Assembly. Because the members of the National Assembly became members of that body because political party leaders agreed that they be placed high enough up on election lists so that they would make it to the National Assembly, MP’s are beholden to party bossses for their jobs and must either do what they say or suffer the consequences.
They can also all be recalled by the party if they do not follow the dictates of the party and if they refuse they can be expelled from the party in which case they automatically lose their seat in the Assembly.
This means that if the party wishes to, it can make the President and the Cabinet mere implementers of policy decided in Luthuli House. While formally the structures of constitutional democracy would then remain in place, this would become a bit of a sham as everything will be decided, at worst, by a few people at Luthuli House and, at best, by 4000 delegates at ANC gatherings. A democratically elected Parliament will facilitate public involvement in the law-making process and will invite civil society members and other members of the public to give oral testimony about policies and draft legislation – just as required by the Constitution – but they will ignore this and follow the dictates of Luthuli House, bringing an end to the participatory aspect of our democracy and diminishing the power of the people.
Yesterday at the ANC NGC President Jacob Zuma departed from his prepared speech when he tried to justify the indecisiveness about finalising a new “growth path” strategy for the country by saying there were complaints about the previous administration’s style of taking decisions before approval by the ANC. (He might as well have said that Thabo Mbeki was a tyrant who never listened to the ANC rank and file and so had to be booted out, because the delegates liked this rather a lot.) “The ANC will be leading. The government will not be leading the ANC,” he said.
This is of course not entirely correct. When one is in government – either as a member of the legislature or the executive – it is impossible to always act on dictation from the ANC. ANC conferences or even the NEC do not consider every Bill and formulate an opinion on it. Neither do they consider any possible policy decision that a Minister is required to make.
This means we have a strange system in which the leadership of the governing party potentially has enormous power to run the country by remote control, while we also have a Constitution that invests many formal powers in the executive and the legislature and makes clear that these bodies are the engine room of our democracy. But how should political parties in government relate to their members in the legilsature and the executive? The Constitution is silent on that.
What is needed is a piece of comprehensive legislation – as is in place in Germany – that regulates the organisation and conduct of political parties. Such a piece of legislation should require any political party who receives money from the state to be organised along democratic principles – including requirements for the democratic election of leaders and candidates for elective office.
It should also require all political parties to be transparent about donations from individuals and companies, should cap donations that could be given to a party each year to less than, say, R10 000, and should also require that the financial statements of political parties be audited to determine that the money was not spent to buy votes or influence or to bribe anyone.
What such a law would not be able to do, would be to solve the problem of the relationship between the party and its members in the legislature and the executive. There will always be problems in this regard, as the political party and its members would want to make sure its members in the legislature and the executive follow the party line, but they will be unable to micro manage all legislators and all members of the executive at all times. At the same time legislators and members of the executive would want to have somewhat of a free hand to respond quickly, strategically and coherently to events that might not have been foreseen by the party.
Can one legislate for this? I am not so sure. Meanwhile the ANC will continue asserting its right to circumvent the democratic institutions by telling its members elected by us and serving in these institutions what to do, while finding that it is rather difficult to enforce this principle from day to day.BACK TO TOP