07 JULY 2022 – 14:25 PAUL HOFFMAN
Two months ago Wits School of Governance associate professor William Gumede used his column in the Sunday Times to put in a plea for early elections in anticipation of the final findings of the Zondo state capture commission. The subheading to the article was: “In democracies, governing parties implicated in such mammoth corruption resign and seek a new mandate from voters”.
In the SA version of constitutional democracy under the rule of law there are features of the constitution that come into play in addressing the question of calling an early election now that the commission has spoken in such damning terms about the leadership of the ANC. Even within the party there are calls for a clean sweep of the leadership, which could only come soon if parliament were to be dissolved and early elections held.
The provisions of the constitution that are directly involved are those that give the power to dissolve parliament to the representatives of the people who have been elected to the National Assembly.
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Section 50 of the constitution says, in effect, that the president must dissolve the National Assembly if an ordinary majority of its members supports such a resolution, and it is passed at least three years after the election of the assembly. The last general election was more than three years ago.
It is therefore possible for the required 201 votes to be mustered from the ranks of the democratically elected opposition — with the co-operation of some ANC MPs.
Section 49 of the constitution requires the president to set dates for an election, which must be held within 90 days of the dissolution of the assembly. Section 1 of the constitution requires that the SA state be founded on the values that “regular elections and a multiparty system of democratic government” are in place “to ensure accountability, responsiveness and openness”.
Its preamble records that “we the people”, through our freely elected representatives, adopt the constitution as our supreme law so as to “lay the foundations for an open and democratic society in which government is based on the will of the people and every citizen is equally protected by the law”, with the intention to “improve the quality of life of all citizens and free the potential of each person”.
The parts of sections 49 and 50 quoted above are clearly included in the constitutional text to cater for the situation that arises when an early election may be the most democratic way forward out of a disastrous state of affairs that has befallen government, whether due to endemic corruption, the selection of unsuitable persons to cabinet, the questionability of the probity and integrity of the person attempting to fill the role of head of state and head of the national executive, or otherwise.
The “Farmgate” scandal, which was still a secret when Gumede made his call, taken together with the final recommendations of the Zondo commission, are indeed cause for pause and reflection in the corridors of parliament on the question of calling an early election.
The purpose of including the provisions of sections 49 and 50 in the text of the constitution was surely to provide a constitutional mechanism for getting the people out of a bind of the kind that arises when clearly unsuitable persons find themselves in power, and their unsuitability to govern has been exposed in the meticulous and painstaking way in which chief justice Raymond Zondo exposed the calumny of the ANC in his report.
Several cabinet members, past and present, are fingered in the report, and the evidence given by the president himself is openly doubted in a number of respects. Former president Jacob Zuma is identified as a kingpin of state capture.
In these circumstances patriotic members of the National Assembly are fully entitled to invoke the provisions that would bring an early end to the farce that constitutional democracy under the rule of law has descended to in the dispensation in place in SA. Even speaker of the National Assembly Nosiviwe Mapisa-Nqakula, a hardy veteran of the Travelgate scandal, people smuggling and an ANC joyride to Zimbabwe in a military plane, looked pale about the gills by the end of the rowdy “debate” on the presidential budget vote.
It should be noted that in the last elections more voters did not vote than voted for the ANC. This is hardly a sign of a thriving democratic order. There may be many different reasons for the “no show” at the ballot boxes, but testing the stayaway of the past with an early election might be a good way to determine the will of the people now that they know what the Zondo commission has uncovered from the documents, affidavits and evidence presented to it.
It is true that any election held before December 10 2022 will not be able to accommodate independent candidates due to the extension in time given to parliament to process the remedial legislation needed to address the court finding that independents ought to be accommodated in parliament.
However, the political calculations that must go into the thought processes preceding the vote to dissolve parliament are beyond the scope of this piece, which is aimed solely at explaining the constitutional position and purpose of the inclusion of sections 49 and 50 in the text of the constitution.
Minority parties may consider themselves ill-prepared for a snap election; the majority may fear losing some seats, or even many seats, and may prefer to cling to power in the face of the damning findings against the ANC. But they may end up being punished by the electorate for doing so when an election is held in due course in 2024 rather than on an accelerated basis in 2022.
In the meantime, the people of SA can only stoically endure the persons and parties for whom they voted. The majority alliance is now exposed as a cabal of crooks, a den of thieves and a kleptocratic clique.
It has been publicly suggested by political economist Moeletsi Mbeki that the purpose behind the much-vaunted national democratic revolutionary agenda of the ANC and its allies has been to insert loyal cadres into the pre-existing colonial and apartheid structures, for the purpose of exploiting the natural and human resources of SA for their own greedy and selfish ends.
If Mbeki is right, an election in which the cadres and their comrades face the electorate post-Zondo cannot happen too soon. Those who favour a “business as usual until 2024” approach need to be reminded of Oliver Cromwell’s 1650 plea to the Church of Scotland: “I beseech you, in the bowels of Christ, think it possible that you may be mistaken.”
• Hoffman, SC, is a director of Accountability Now