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.
It sounds like some members of the ANC might be panicking prematurely. For the first time since 1994 the ANC National Working Committee (NWC) has issued a statement that seems to hint that the ANC was not fully committed to democracy and that it may not relinquish power if it lost a free and fair election because it would view that as “regime change”. The panic is rather strange because the ANC received two-thirds of the votes during the last election.
But the stakes are high for the tenderpreneurial wing in the governing party. After all, if the ANC loses an election, its leaders will lose access to all those government cars and all the free stays at the Mount Nelson. They will not be able to go on the many government-sponsored overseas trips and their bodyguards and blue light convoys will be taken away from them. And for the increasing number of ANC cadres who believe ANC stands for “ANother Contract”, the thought of losing the ability to dish out tenders to friends, family and business partners, must really be troubling.
But still, the statement issued by the NWC in the wake of the Civil Society Conference, organised by Cosatu, is difficult to explain. Sure the ANC was not invited, but neither was any opposition party. And it is not as if Cosatu and civil society organisations had decided to form their own political party to challenge the ANC at the next election. Why then this rather over the top and and anti-democratic rant?
It suggests both a deep suspicion and a rather sad insecurity on the part of a some ANC leaders, who might have forgotten that the overwhelming majority of voters still put their trust in the ANC at the last general election. Who is in charge of the ANC, one might ask. This statement sounds more like it was drafted by Julius Malema and Simphiwe Nyanda than by Gwede Mantashe and Kgalema Motlanthe.
The assertion and suggestion made by Civil Society formations and some unions and unions leaders, can be clearly interpreted by any logical thinking person as an attempt on the side of the organizers to put a wedge between civil society formations, some Unions, the ANC and its Government.
We should all learn from history of what happened in some parts of the continent, when some labour leaders working together with civil society formations, came up with alternative political parties to unset the ruling parties and governments in those parts of the continent.
We believe the leadership of COSATU is fully aware of what we are talking about here, and we believe the majority of the COSATU leadership have no intention of implementing regime change in South Africa, but we non-the-less caution, that an action like the one of leading a charge for the formation and for the mobilisation of a mass civic movement outside of the Alliance partners and the ANC might indeed be interpreted as initial steps for regime change in South Africa. This is further reinforced by the attacks on all black political parties by the Secretary General of COSATU and the notable omission of the main opposition in such attacks.
An organized and mobilized civil society is good for democracy. Equally an organised and mobilised civil society that has positioned itself as an opposition to other forces of change is having the potential of derailing the revolution and the programme for change.
Regime change? What are these people smoking? We live in a democracy, not in a one party state. Anyone – including any labour movement and any civil society organisations – have the right to convene a summit without inviting the ANC. If this is bad alliance politics, then say so. But talking about regime change and suggesting that Zimbabwe is in the mess it is in because trade unions and civil society groups formed the MDC is rather scary. (A more alarmist interpretation of the NWC statement would be that it was a warning to Cosatu and civil society leaders to toe the line – or else. After all in Zimbabwe many MDC leaders were arrested, tortured and sometimes murdered by the Zanu-PF police thugs.)
In fact, in a democracy, trade unions and civil society groups have a right to form a political party and contest elections and if they won such an election this could not possibly be called “regime change” as “regime change” happens when the government of the day is overthrown illegally. The ANC statement suggests that in its world any organisation that wished to oust the ANC at the ballot box was acting illegally and unconstitutionally – a notion that is patently absurd. (This reminds me of the saying passed around amongst white progressives who refused to vote in whites only elections during apartheid: “If voting could change anything, it would have been illegal.”)
If Cosatu and civil society groups formed a political party and contested elections – something that they have made clear they are not planning to do – and if they win an election, that will not constitute regime change but a democratic change of the government. That is what democracy is all about – the voters get to decide who rule the country – so the ANC’s dark mutterings about regime change hints that it sees itself as having the right to rule regardless of what the voters say. Why then is the ANC NWC using such inflammatory phrases and why are some ANC leaders overreacting to the Cosatu summit?
I think there are at least two reasons for this.
First, as the ANC gets dragged down in a cesspit of corruption and nepotism, as some of its leaders pocket millions of Rand through shady deals and corrupt tenders, as they throw lavish parties and live a lifestyle so obscenely opulent that it could only – in the long run – breed resentment and distrust, the party is becoming more paranoid about the threats to its power.
Because it is slowly losing the moral high ground as the party becomes ever more closely associated with corruption and greed (something that is so predictable as it happens to governing parties in almost all one party dominant democracies), the party is terrified that it will suffer the same fate as Zanu-PF in Zimbabwe, who won landslide election victories until the referendum on a new Constitution came around. Then Zanu-PF shockingly lost the referendum after civil society mobilisation against the new draft Constitution. It has not won an election since and had to steal several elections since then to stay in power.
This means that if the same thing happened in South Africa the ANC’s electoral decline will not happen gradually but will come suddenly and brutally fast – as one day the long suffering electorate who has continued to give the ANC the benefit of the doubt wake up from their long daydream and turn their backs on the greedy kleptocrats and incompetents who have infiltrated the ANC.
Second, as it becomes more and more difficult for the ANC to present itself as the party of “revolutionary change” (given that it has been in power for 16 years and is becoming a party whose reasons for ruling has less to do with revolutionary change and more with access to power and the money that flows from power), the threat of losing the support of civil society and elites more generally becomes a more serious concern.
I suspect the ANC has been shocked by the recent successful mobilisation by civil society and Cosatu against the draconian Secrecy Bill. This initiative must have been a wake-up call to the ANC because civil society stood up as one to reject this draconian piece of legislation and easily won the political argument, convincing the majority of South Africans that the Bill will be used to hide corruption, not to protect state security. That is why the ANC has had to backtrack on the Bill. During the hearings of the ad hoc Committee of Parliament on the secrecy Bill, the ANC members were extraordinarily arrogant and vindictive and gave the impression that it would pass the BIll come hell or high-water. Since then the ANC has softened its stance and now claim it was never fully committed to the original version of the Bill.
Since 1994 civil society has – broadly speaking – been supportive of the ANC. Even the Treatment Action Campaign was careful to position itself not in opposition to the ANC, but merely in opposition to the health policies of one scarily paranoid President and his alcoholic Minister of Health. This has made it much easier for the ANC to run the country and to retain the legitimacy that it needs to govern and to win elections.
But since Jacob Zuma has been elected as leader of the ANC, and especially because of some really scary moves on the part of the ANC and the government it runs (the abolition of the Scorpions to protect corrupt party elites from prosecution, the Secrecy Bill, proposals for a Media Appeals Tribunal), civil society has become more disenchanted with the ANC. And civil society could become a vehicle to channel disenchantment with the ANC in government. As the official opposition lacks legitimacy amongst the majority of voters, such voters who demand change and demand better government might look towards civil society – instead of toward the increasing number of inept and corrupt members of the ANC – to deliver such change.
The problem for the ANC is that its electoral dominance is based, in part, on its dominance of the political space. As long as there is a perception that the ANC is the only game in town, it will be easier for the ANC to remain politically dominant. But as soon as that perception is shattered (as happened in Zimbabwe with the constitutional referendum) all bets are off and voters may decide to desert the party in droves and vote for an alternative.
COPE did not make a big impact at the last election at least partly because voters still saw the ANC as the only relevant political party in South Africa; the only party who could possibly win an election; the only party who could deliver access to state resources and the patronage that goes with it (even if it could not deliver services). But if the ANC appears electorally vulnerable because it believes that if it stops being the dominant moral and political voice in our politics, this might open the floodgates and ordinary voters – especially in the metropolitan areas – who are disenchanted with the ANC because of a lack of service delivery (or just because the ANC had “affirmed” somebody else with a nepotistic government job and not themselves) might look elsewhere and might vote for a new party (like voters in Zimbabwe suddenly voted for the MDC in Zimbabwe).
No wonder the NWC got their nickers in such a knot about such a silly and inconsequential matter. But this hysterical statement won’t change anything. If the ANC wanted to regain the political initiative it should actually govern better and more honestly; it should really tackle corruption (instead of merely talking about how it wants to tackle corruption); and it should ditch the draconian proposals for the adoption of a Secrecy Bill and a Media Appeals Tribunal. But whether the people in charge of the ANC (whoever this might be) understands this or whether these people are too far gone on the path of paranoia and suspicion – well that only time will tell.BACK TO TOP