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 protest that erupted in Tshwane after the ANC leadership decided to impose Thoko Didiza as its “compromise” mayoral candidate for the city raises questions about the extent to which political parties should adhere to democratic processes when they elect leaders and nominate candidates for election to public office. To what extent should all party members (or even supporters) be involved in these processes? Will more (and better regulated) internal party democracy prevent the kinds of protest seen in Tshwane this week?
Political party leaders do not have the legal power to elect mayors (nor premiers or the president). In terms of section 48 of the Local Government Municipal Structures Act each municipal council elects a member of its executive committee as the mayor at the time when the executive committee is elected. The executive committee is elected by each municipal council from among its members at a meeting that must be held within 14 days after the local government election.
However, in practice members of municipal councils do not have the freedom to elect the executive committee of their choice and neither do the executive committees in practice have the freedom to elect the mayor of their choice.
Because elected representatives are subject to strict party discipline, the leadership of the party who wins the election (or if no party wins more than 50% of the seats, the leadership of a coalition of parties) decides who must be elected as mayor. Similarly, the leadership of the majority party decides who must be elected as premier or as president.
Of course, where no party wins an outright majority, a formal or informal coalition of parties will have to negotiate about who to elect as mayor. As the candidate selected by the party leadership of the largest party might be unpalatable for formal or informal coalition partners, a hung council will open the possibility for another candidate to be elected as mayor. But party leaders – and not voters or even the elected representatives in the relevant municipal council – will make this decision.
There is no explicit provision in the Constitution or in the Local Government Municipal Structures Act requiring political parties to select its mayoral candidates democratically.
It is therefore not surprising that at present none of the major political parties allow its party members or supporters to directly elect its mayoral candidates (or its candidates for premier and for president). The selection of mayoral candidates by different parties may, to a larger extent (the ANC) or lesser extent (the DA) contain democratic elements, but is not itself fully democratic. This is because neither the ANC, DA or EFF allow all its party members or supporters directly to vote for the mayoral candidate of their choice. (The same is true of candidates for premier and for president of the country.)
This system allows party leaders – and not party members or supporters – to have the final say in the selection of mayors, premiers and the president. Although this instinctively appears to be bad for democracy, political scientists and democratic theorists differ on the degree of citizen participation that is desirable in a democracy. Last year I published an article in the South African Journal on Human Rights in which I explored some of the arguments on either side of this debate.
Simplifying the matter slightly, one finds in one corner those who argue that too much citizen participation hampers the thriving of a democracy. This group warns that too much participation may threaten the protection of the rights and freedoms of some citizens (especially vulnerable and marginalised groups), may be bad for gender representivity, and may thus impede the full recognition and proper management of diversity in a democracy.
Too much internal party democracy, so the argument goes, may marginalise some groups and may promote racism, tribalism, and sexism in the election of leaders and public representatives. They also warn that too much democratic participation in party decisions may allow a party to be high-jacked by opponents or by vested corporate or other interest groups and may threaten the unity of the party. Lastly, they warn that expansive forms of participation may make it too difficult to govern a state effectively.
In the other corner one finds those who see such limits to democracy as an important reason for many of the ills associated with contemporary democracies. Limited participation, so the argument goes, empowers unelected and unaccountable bureaucrats to make decisions that may have a profound effect on the lives of citizens. It disempowers citizens and makes them cynical about the democratic process while allowing those with money to buy influence and to subvert the democratic will of the people.
When party leaders or public representatives are not elected by all party members or supporters voting in, for example, primary-style elections (so they argue), the process can be high-jacked by power brokers with money or by those who control the party machinery in certain regions.
This argument must be qualified. Where primary-style elections are not regulated properly, big corporations or well-resourced groups advancing their own financial interests may bankroll the primary campaigns of candidates with the aim of ensuring that elected leaders implement their preferred policy choices or grant them benefits like tenders and access to other state resources. This will, once again, leave the poor and the marginalised disenfranchised as elected representatives will try to keep their rich donors happy by implementing their policy choices and by granting them special favours.
Nevertheless, it is perhaps time to ask whether political party members (or even supporters) should not have a more decisive say in electing party leaders and public representatives like mayors, premiers and the president.
In Doctors for Life International v Speaker of the National Assembly and Others the Constitutional Court highlighted the need for citizen participation in governance matters in an unequal society like South Africa and explicitly linked this need for participation with the dignity of citizens.
The participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist.
The autonomy and moral agency so closely associated with the value of dignity is potentially severely curtailed by some rules and practices of political parties that exclude ordinary members from effective participation in important decisions relating to that political party, including decisions about who that party’s mayoral candidate should be.
Although the Constitution does not contain any provisions explicitly requiring political parties to allow its members or supporters to take part in direct elections for its leaders and its public representatives like mayors, premiers and the president, section 19(1) of the Constitution does guarantee for every citizen the right to make political choices, which includes the right:
(a) to form a political party; (b) to participate in the activities of, or recruit members for, a political party; and (c) to campaign for a political party or cause.
In Ramakatsa v Magashule the Constitutional Court held that the right to participate in the activities of a political party at the very least imposes on every political party the duty to act lawfully and in accordance with its own constitution.
The judgment declared invalid the African National Congress (ANC) Free State elective conference held in June 2012. It confirmed the pivotal role that political parties play in the South African constitutional democracy as “elections are contested by political parties” and it is “these parties which determine lists of candidates who get elected to legislative bodies”.
The court seemed to endorse the theory that intra-party democracy represents a virtuous circle, stating that participation in the activities of a political party is critical to the party attaining success in elections. It affirmed that the political right guaranteed by section 19 of the Constitution is not limited to the right to vote in an election but extends to participation in political activities – including the activities of political parties – in-between elections.
However, the judgment did not state in categorical terms that the right to participate in the activities of a political party necessarily requires full democratic participation in the activities of that party and the selection of leaders and public representatives. Rather the Ramakatsa judgment implied, but never spelt out explicitly, that what was required was full democratic participation of party members in the activities of the party. However, it added the caveat that this must be done in a manner determined by the political parties themselves.
Thus Moseneke DCJ and Jafta J stated:
In relevant part section 19(1) proclaims that every citizen of our country is free to make political choices which include the right to participate in the activities of a political party. This right is conferred in unqualified terms. Consistent with the generous reading of provisions of this kind, the section means what it says and says what it means. It guarantees freedom to make political choices and once a choice on a political party is made, the section safeguards a member’s participation in the activities of the party concerned. In this case the appellants and other members of the ANC enjoy a constitutional guarantee that entitles them to participate in its activities. It protects the exercise of the right not only against external interference but also against interference arising from within the party.
It is unclear what form the Constitutional Court envisages such participation to take and to what extent the participation must be meaningful and capable of influencing both the policies of the party and the selection of its candidates for public office or its office bearers.
The closest the Ramakatsa judgment came to explain what the content of this right might be and to what degree this might impose a duty on political parties to ensure at least certain forms of intra-party democracy in its organisation is where the majority concluded that the implications of section 19(1) of the Bill of Rights is that the “constitutions and rules of political parties must be consistent with the Constitution which is our supreme law”.
As noted, the majority of judges in the case suggested that political parties should, at the very least, have some margin of appreciation (although they do not use that term) in determining how they wish to regulate how members of the political party should exercise the right to participate in the activities of their party as “[t]hese activities are internal matters of each political party’ and parties are therefore ‘best placed to determine how members would participate in internal activities”.
In the wake of the protest that erupted in Tshwane after the ANC leadership decided to “impose” Thoko Didiza as its “compromise” mayoral candidate for the city, maybe the time has come to reopen the debate about internal-party democracy. Can party members and even supporters be given a more decisive say in the election of party leaders and public representatives for all political parties without the process being captured by those with money to throw around? Will more (but better regulated) internal party democracy not cure some of the structural problems associated with South Africa’s democracy?BACK TO TOP