Recently, while fielding questions from eager students on how, according to the Constitution, the President is appointed and removed from office, I realised it was insufficient to answer their question without also referring to the constitution of the ANC.
I explained that section 86(a) of the Constitution provides that at its first sitting, after its election, and whenever necessary to fill a vacancy, the national assembly must elect a woman or man from among its members to be the President. In practice, this means the ruling party’s members in the National Assembly, who hold the majority, will vote for that party’s president to be the President of South Africa. This parliamentary process, however, cannot be understood without understanding the internal appointment processes of political parties.
Rule 11.4 of the African National Congress’ (ANC) constitution provides that it’s National Conference shall elect the President, the Deputy President, National Chairperson, the Secretary-General, Deputy Secretary-General, the Treasurer-General and the remaining 80 additional members of the NEC. In terms of Rule 12.7.1, the provinces can place before the National Conference nominations for the posts of President, Deputy President, National Chairperson, Secretary-General, Deputy Secretary-General and Treasurer General.
On removing a President section 89(1) of the Constitution provides that the National Assembly by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the following grounds: a serious violation of the Constitution, serious misconduct, or the inability to perform the functions of office. However, the instances in our country’s history where a sitting President was removed was not through the mechanisms of our Constitution but through the mechanisms of the ANC’s constitution.
“Recall” is not a term that appears in our Constitution, it does, however, appear in the ANC’s constitution and it is defined as “to order to return”. Rule 188.8.131.52 of the ANC’s Constitution provides that the NEC may sign deployment contracts with public representatives and recall any public representative. Public representative is defined in the ANC’s Constitution to mean “a member who represents the ANC in national, provincial or local government as a deployed member or deployee as defined or in terms of a contract of deployment entered into with the ANC”.
“A deployed member or deployee” means a member who accepts to perform certain duties and functions on behalf of the ANC in a representative capacity, in addition to his or her duties and obligations as a member. Therefore, the President of South Africa as a deployee of the ANC can be recalled by the ANC’s NEC.
The relationship between the parliamentary and non-parliamentary wings of the ANC and the relationship between the Constitution of the Republic of South Africa and a ruling party’s constitution should be understood within our understanding of constitutional literary. In particular, we should understand as set out by legal scholar, Sujit Choudhry, whether it’s the public office holders subject to electoral accountability or unelected party functionaries that set the national government’s priorities.
The effectiveness of our constitutional design especially as it relates to the oversight of the executive by Parliament has been severely curtailed by the enforcement of party discipline – or what is commonly known as toeing the party line. Many instances in our short constitutional history have demonstrated that it is the NEC that keeps the Executive accountable not Parliament. Choudhry wrote an extensive paper in 2009 regarding the effects of the ANC’s dominance on our democracy – observing that the ostensible authority resides in the Constitution, Parliament and Cabinet, but real authority resides in the party. Real decision making occurs outside of formal constitutional structures such as Parliament and is instead conducted behind the closed doors of party forums. What does this mean for the supremacy of our Constitution?
The famous secret ballot case decided by the Constitutional Court in 2017 dealt with this tension intrinsic to the design of our constitutional democracy which is the dual responsibility of our Members of Parliament (MPs) as representatives of the electorate and simultaneously as representatives of their political parties.
In its judgment, the Constitutional Court set out a number of factors that the Speaker must take into account when considering whether to authorise a secret ballot which includes the Speaker’s own impartiality because the Speaker was also the Chairperson of the ruling party. This reference to impartiality highlights the duality in not only the Speaker but in all MPs and the President who essentially serve two masters: The people and their parties.
Section 42(3) of South Africa’s Constitution states clearly that the “National Assembly is elected to represent the people and to ensure government by the people under the Constitution”. Giving effect to the requirements of the Constitution means that the concerns and the will of the people should be the deciding factor when the Speaker and MPs are charged with making important national decisions. This is so because, as pointed out by the Court, it is not practical for all 55 million of us to assume governance responsibilities and function effectively in the three arms of the State and its organs, and therefore “we the people” designated messengers or servants to run our constitutional errands for the common good of us all. Implicit in this statement is a deep-seated concern regarding the effectiveness of Parliament’s constitutionally-prescribed accountability-enforcing mechanisms.
The Speaker is chosen from amongst Members of the National Assembly which then gives rise to the Speaker’s responsibility to balance party interests with those of the people. The Speaker’s balancing act is as difficult and onerous a dual responsibility as it is for MPs, perhaps even more so, given the independence and impartiality the position requires. Parliament’s efficacy in its constitutional oversight of the executive vitally depends on the Speaker’s proper exercise of this enormous responsibility. In my opinion, this balancing act is almost impossible because the Speaker, as the Chairperson of the ruling party, is also bound by the constitution of the ANC in the same manner that all MPs are bound by two constitutions, but which constitution takes precedence?
As the supreme law of the land, the Constitution of the Republic of South Africa should take precedence but does it take precedence in reality? It can never be in our constitutional democracy that MPs and the Speaker can be exempted from their constitutional responsibilities by their party obligations. Toeing the party line can practically elevate a party’s constitution above the country’s Constitution which is quite troubling when one considers, for instance, the salaries of MPs are paid with public funds and not the party.
Confirming my fears following the Court’s judgement, the ANC’s Chief Whip stated that ANC’s MPs are accountable to the National Executive Committee (“NEC”), and the NEC had debated at length the motion of no confidence against the President and resolved that the ANC would not withdraw its President. The extent to which people will be ill-disciplined, the ANC will have to apply a disciplinary procedure for those who want to use the so-called “conscious vote” to determine their voting in Parliament. To the contrary, Kgalema Motlanthe stated that MPs are not “hirelings of the ANC” but public representatives who took an oath to be faithful to the Constitution of South Africa.
But as we all know the ANC eventually did recall President Zuma in early 2018. However, it was troubling for purposes of our constitutional design and the transparency that it demands that it was not Parliament but rather the NEC that debated this matter of such national importance without affording all South Africans the opportunity to listen in and to appreciate the different views within the party.
Toeing the party line requires MPs to conform to their party’s ideology. However, insistence on conformity prevents MPs from doing their most important constitutionally mandated job, namely to constrain the executive. Logically membership in any organisation conveys a message that the person is in agreement with its ideologies and policies. Yet, there are issues that will not have unanimity by all members and toeing the party line means the public debate is stifled, which is the essence of our constitutional democracy.
All these difficulties under our system are an incident of our chosen electoral system which is party-centred, which Prof Pierre de Vos has pointed out means that MPs in the National Assembly or in other legislatures run the risk of becoming mere conduits to implement instructions handed down to them by unelected party leaders. If this happens, real power decisively shifts from the democratically elected legislature towards the unelected leadership of the majority party.
It is acknowledged that for our country to implement its transformation agenda it requires MPs to implement and champion party positions but there must be limits in place which ensure open public debate on matters of national importance and which will ensure that MPs, as the representatives of the people, fulfil their constitutional responsibility of holding the executive to account – anything short of this is surely unconstitutional.
- Lwando Xaso is an attorney and a writer exploring the interaction between race, gender, history and popular culture
OPINION: Lwando Xaso