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 text of the South African Constitution does not provide any clarity on the nature of the relationship between extra-parliamentary political parties and their elected representatives in the national and in provincial legislatures. Can extra-parliamentary leaders of political parties dictate to their MPs how to exercise their constitutional duties, including their duty to vote in a motion of no confidence against the President? If parties can dictate to their MPs, it means that power shifts from the democratically elected legislature to the leadership of the governing party who, at most, is “elected” by a few thousand carefully selected party members (possibly after money has changed hands to sway that “vote”).
In South Africa voters do not vote for individual members of the national of provincial legislatures. At the national and provincial level, we vote for political parties, not individual MPs. MPs are “elected” into the legislature because they happen to have been placed high up enough on their respective party’s electoral lists (or, in the case of someone like Brian Molefe, because they were manipulated to the top of the relevant list).
But because few if any voters know the names of candidates on each party’s election list, or the position of each name on that list, (and because the vast majority of voters in any event have no say on the position of individual candidates on party lists), this means voters essentially vote for the leadership of the political party of their choice, not for individual MPs who represent parties in the legislature.
Since 1994, this has in effect meant that the few thousand delegates to the ANC elective conference (or the hundred or so “gatekeepers” who make sure that people who support their preferred candidate gets nominated to attend the elective conference) in effect get to elect the President of the country.
In theory voters get to decide whether to endorse this “election” of the President when they are asked to vote for the party (or more specifically, the leadership of the party) at the first election after a leadership contest.
But as voters cast their vote for a political party for many different reasons (often despite of, and not because of, the leader of the party) it is not clear that voters endorse the leader selected by a few thousand (or a handful) of ANC members at an elective conference when they re-elect the governing party into office.
It is not clear if this problem can be solved by allowing individual MPs of the majority party serving in the National Assembly (NA) to vote for the Presidential candidate of their choice – regardless of whether the candidate of their choice was elected as the leader of the governing party at an elective conference or not. Neither is it clear that this democratic deficit can be addressed by allowing individual MPs to decide whether they will support a vote of no confidence in the President.
This is because voters have not, in fact, voted for the individual MPs and did not give individual MPs any political mandate on who to elect as President (or whether to remove a President from office through support for a no confidence vote). They lent their vote to a political party knowing full well who the leader of that party is and that the leader would be elected as President of the country if that party won a majority of seats in the NA at the next election. (This is also why voters who claim to vote for a party and not its leader is talking a lot of twaddle – they are voting for the leader of the party, whether they like it or not.)
This system is extremely bad for democratic accountability and for the proper functioning of supposedly democratically elected legislatures. In this system, MPs in the NA or in other legislatures run the risk of becoming mere conduits to implement instructions handed down to them by unelected party leaders. MPs become automatons who act under dictation from party leaders who tell them what to think, how to behave and how to vote on any given issue.
If this happens, real power decisively shifts from the democratically elected legislature towards the unelected leadership of the majority party. Real power then resides with the leader or leaders of the governing party, who have not been democratically elected by voters and over whose identity the vast majority of voters have absolutely no say. Voters are disenfranchised vis-à-vis party bosses and the gatekeepers (and secret donors) who have a decisive influence on party elective conferences.
There appears to be no elegant solution to this problem unless MPs are directly elected by voters: there are only bad or even worse solutions, each creating problems of their own.
One way to fix the problem is to change the electoral system to allow voters to vote for individual candidates who represent their constituencies, not party leaders. However, this will favour the ANC and will likely cement its electoral dominance for several elections as constituency based electoral systems amplify the majority of the largest party and reduces the seats for opposition parties.
Apart from this, the most obvious solution is to hold that party leaders (the President or the ANC NEC under present political conditions) are not permitted to dictate to their MPs how to act or how to vote when they consider any matter that comes before the NA or any other legislature (including whether to support a vote of no confidence in the President)
In a slightly different context, this is exactly the question that arose in the Constitutional Court case of Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others. In that case, the Gauteng delegation to the National Council of Provinces (NCOP) was given a mandate by the Gauteng legislature to oppose the constitutional amendment which would re-incorporate Merafong from Gauteng into the North-West Province. But once the Gauteng NCOP delegation discovered that its opposition would scupper all the boundary amendments (also those applicable to other provinces), it mysteriously changed its position and supported the amendment.
The Merafong Demarcation Forum argued before the Constitutional Court that the NEC of the ANC had decided at the end of 2004 to incorporate Merafong into North West and that all the consultation undertaken by the Gauteng Legislature to decide how its delegates would vote in the NCOP was in effect a sham as the delegates were always going to follow the dictates of the party bosses.
The Gauteng MPs to the NCOP, so the argument went, were consequently never open to be persuaded by the views of the people of Merafong. In the end, so they argued, it was political pressure from the ANC NEC which forced the Gauteng Provincial Legislature to change its position on support for the border changes. The majority of judges rejected this argument and held that there was insufficient evidence:
to determine whether and to what extent the final voting mandate and debate in the NCOP Select Committee [ie the NCOP committee which considered the constitutional amendment] were directly or indirectly influenced by previously formulated policies of the ruling party.
This majority judgment alerts us to a serious problem with the argument that MPs should never blindly follow the instructions of the extra-parliamentary leaders of their party. The problem is this: in most cases it would be impossible to prove before a court of law that individual MPs voted in a particular way because they were instructed to do so by party leaders. How will one ever be able to prove that ANC MPs voted against a vote of no confidence against the President because they were instructed to do so by the ANC top 6 or by the ANC NEC?
In a minority judgment in the Merafong case, Moseneke DCJ held that the decision by the NCOP delegation from Gauteng to change its mind on how to vote in the NCOP was irrational. He reached this conclusion by proceeding from the assumption that a reversal of position without explanation is presumptively irrational, and then considered and dismissed a number of possible rationales for this change in position.
At least one academic commentator later argued that the real reason why the decision by the Gauteng NCOP delegation to change its mind on whether to support the amendments should have been declare invalid was not because it was irrational but rather because it was made under “dictation” from the extra-parliamentary leadership of the ANC. The ANC NEC had already made a decision and no matter what happened the NCOP delegation from Gauteng was always going to follow the instructions form the NEC.
In this view – mirroring a principle developed in the Administrative law context – a decision must be taken by the person or institution who was constitutionally empowered to make the decision. If the Constitution bestows the power on individual MPs to decide whether to support a vote of no confidence in the President, the decision how to vote in such a motion must be left to MPs.
In this view, if the ANC NEC (or the DA Federal Council for that matter) attempts to dictate to individual MPs how to vote (either directly or through provisions in the ANC or DA Constitutions which threatens MPs with removal if they vote against the dictates of the party leaders) then the MPs will be acting unlawfully.
Could one argue that ANC MPs who oppose a vote of no confidence in the President because they were instructed to do so by the ANC NEC and were threatened with a loss of their seat if they refused, act under dictation and hence in an invalid manner? Put differently, are individual MPs constitutionally required to decide for themselves (without following the instructions of the party leaders) how to vote on a motion of no confidence in the President?
The short answer is that one could plausibly argue this but that there are equally plausible counter arguments foreshadowed by what I wrote above. MPs lose their seats in the NA if they are expelled from their respective political parties. This is because MPs only serve in the NA because they are members of political parties who were trusted enough by party leaders to represent the interests of their respective parties in the legislature.
One could therefore plausibly argue – if one wishes to oppose the argument that MPs should not act under dictation – that it is an inherent requirement of the job as MP to please the party bosses whose support MPs need if they were to remain MPs and, in the long term, to remain high up enough on their party/’s electoral list to be “ere-elected” to the legislature after future elections.
As I tried to show in the limited space, we have not even begun to work out the proper relationship between extra-parliamentary political parties and the elected representative of parties in various legislatures which is required by our Constitution. Much more thought needs to go into addressing this question which raises serious questions about the quality of our representative democracy.BACK TO TOP