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.
There is a paradox at the heart of our constitutional democracy. While political parties play a pivotal role in any well-functioning constitutional democracy, powerful political parties like the ANC – with a strong culture of discipline and a belief in “democratic centralism” – also pose a serious threat to the health of any constitutional democracy.
In a constitutional democracy, voters vote for the political party of their choice. In our system, the representatives of political parties are thus elected to Parliament to represent the interest of voters and the leader of the majority party (or the largest party in the National Assembly) is elected as the President of the country.
Our system of democracy cannot operate without the presence of political parties and it is therefore not surprising that one of the founding provisions of our Constitution states that South Africa is a democratic state founded on the value of universal adult suffrage, a national common voters roll, regular elections and “a multi-party system of democratic government”.
In South Africa at the national and provincial level we do not vote for individual people who happen to represent a specific political party. We vote for political party of our choice and that political party decides in any way it deems fit who should appear on the electoral lists and thus who will represent the party in the various legislatures. Members of the leadership of the majority party usually then also become members of the executive.
But our Constitution does not explicitly regulate the relationship between the extra-parliamentary wing of the political party (in the case of the ANC that would be the NWC, the NEC and the “top six” of the ANC) and the intra-Parliamentary and intra-executive wings of the party.
Because we vote for a party and not an individual, members of the legislature and executive must broadly adhere to the policies of the political party they belong to. Members of the legislature do not have a free mandate to vote according to their conscience (if any). However, and somewhat paradoxically, these members have been elected to represent the interest of the voters in the legislature and the executive: they were not elected to present merely the interests of the political party they belong to.
A balance need to be struck between the need to follow party policy and the need to represent the voters. On the one hand, public representatives must be guided by the policies and decisions of their parties. On the other hand, when they are remote-controlled by unelected extra-Parliamentary forces they are not representing the voters as they are constitutionally required to do. Where members of the legislature or the executive do not in fact make any independent decisions but only execute decisions of the extra-Parliamentary leadership of the political party, the formal structures of the constitutional state are fatally undermined. Then we do not have a fully functioning constitutional democracy anymore but rather we are veering towards becoming a party autocracy.
The heart of our democratic system is supposed to be the National Assembly, but if the ANC members of the National Assembly as well as the Cabinet Ministers are mere appendages of the extra-Parliamentary wing of the ANC then the National Assembly and the Executive become mere rubber stamps for decisions taken by a body that is not democratically elected. Instead of being governed by those representing the more than 10 million voters who voted for the ANC, we are then governed by those who were voted into office by 2400 delegates at Polokwane.
Provisions requiring Parliament to facilitate public involvement in the law making process and provisions requiring members of the executive to be accountable to the legislature then become meaningless as both the majority of members of the legislature and the cabinet are then only accountable to the ANC leadership which was not elected into office by the voters. In our system, it is always going to be difficult to strike the right balance between the extra-Parliamentary and the intra-Parliamentary and intra-Executive wings of the majority party.
Former President Thabo Mbeki was accused of concentrating too much power in the hands of the Presidency and of ignoring the extra-parliamentary wing of the ANC – and he was unceremoniously dumped because of this. Now, perhaps because President Jacob Zuma is fearful that he will be dismissed by his own party, the power has swung too far in the other direction. Nothing demonstrates this better than the manner in which various intra- and extra-Parliamentary leaders of the ANC dealt with the Trevor Manuel letter to Jimmy Manyi. As Stephen Grootes noted in an article in The Daily Maverick:
It really is an interesting illustration of how politics works in this country. Last week, after the publication of the Manuel letter, you couldn’t get a minister to comment on this for love or money. Suddenly the NWC meets, and Manyi gets cabinet’s full backing. It really is just about politics, and who is in favour and who is not. Sorry, we didn’t mean to sound surprised.
There is a real danger lurking in this development. The fact that the ANC adheres to the principle of democratic centralism (itself a highly dubious and undemocratic principle), which requires all members to toe the party line once the party has spoken, coupled with the infighting and factionalism within the ANC which leads to a tendency of representatives not to want to make any decision or take any public position until the official line has been communicated from Luthuli House, inevitably leads to a hollowing out of the constitutional institutions such as the national legislature and the national executive.
This state of affairs is not good for our constitutional democracy. If Luthuli House in effect runs the country, the role of political parties other than the ANC becomes irrelevant. This means that the votes cast for opposition parties become completely irrelevant and do not count. At least at present some of the extra- and intra system members of the ANC overlap – for example the President of the ANC is also the President of the country – which mitigates the problem. This does not address the problem of undermining opposition parties, but it does make the whole system slightly less undemocratic.
That is why it was such a bad idea for President Thabo Mbeki to stand for a third term as President of the ANC. Given our system, if President Mbeki had won at Polokwane he would have been able to run the country from Luthuli House and this would have been even more undemocratic than the present system because Mbeki would not have been directly or indirectly elected by the voters (as President Jacob Zuma at least is) yet, through Luthuli House, he would have been able to run the country merely because just more than 2000 people had voted for him at an ANC conference.BACK TO TOP