By Paul Hoffman Paul Hoffman SC is a director of Accountability Now.
The elections for national and provincial parliaments due in 2024 will be like no other held so far since 1994. Independent candidates will be allowed for the first time. Coalition politics at national level is a possibility due to the slippage of support of the hitherto dominant alliance led by the ANC.
When the post-apartheid dispensation dawned in 1994, the overwhelming majority of political parties and others active in the reform process agreed upon a supreme constitutional dispensation in which multiparty democracy under the rule of law was established.
Regular free and fair elections were contemplated and a proportional representation system was adopted with a view to accommodating minorities. The first-past-the-post rules of the parliamentary sovereignty of the old order were swept away.
The Constitution rules, the people govern through their duly elected representatives, and all political actors are constrained to conduct themselves, and to make laws, in a manner consistent with the Constitution. Our justiciable Bill of Rights which obliges the state to “respect, protect, promote and fulfil” our guaranteed human rights was billed as a game changer for the new South Africa.
“We the people of South Africa” (the first words of the Preamble to the Constitution adopted as our supreme law) expressed the belief that “South Africa belongs to all who live in it, united in our diversity”.
We enjoined our elected representatives to “lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is protected by law”. We wanted to see a system that would “improve the quality of life of all citizens and free the potential of each person”.
In our much-lauded Bill of Rights, every citizen is accorded the right to free, fair and regular elections in which every adult citizen has the right to vote and to stand for election. An Independent Electoral Commission has been set up to manage elections and to ensure that they are indeed free and fair. Unorthodox and illegal fundraising techniques by the ANC undermine the fairness of elections.
Free and fair elections are an impossibility when hatred and fear become the order of the day. The democratic project could be derailed.
The elections for the national and provincial parliaments due in 2024 will be like no other held so far since 1994. Independent candidates will be allowed for the first time, free of party political baggage, beholden to voters, not party bosses. Accountability to “we the people” may be enhanced if enough independents are successful in their campaigns.
Coalition politics at national level is a possibility due to the slippage of support of the hitherto dominant alliance led by the ANC. More than 350 political parties have registered to contest the 2024 elections; it is likely that fewer than 20 of them will grace national office.
The ANC itself has splintered over the years. First the UDM was created after General Bantu Holomisa was fired for blowing the whistle on the corruption of ANC bigwig Stella Sigcau.
Then, after the 2007 bloodbath at Polokwane, in which Thabo Mbeki was routed by Jacob Zuma, the unhappiest of Mbeki’s supporters led by the unfortunate duo of Mosiuoa Lekota and Mbhazima Shilowa set up the Congress of the People, but they turned out to be the most effective saboteurs of their new party.
Zuma clashed with his youth league leader, Julius Malema, and this clash, after Malema was thrown out of the ANC, led to the formation of the EFF, today the third-biggest party in Parliament.
The premature ending of the second Zuma presidency in 2018, and his subsequent conviction by the Constitutional Court for contempt of court has led, somewhat tortuously, to the formation of the Umkhonto Wesizwe party which is campaigning against the ANC with Zuma’s support while Zuma himself remains a member of the ANC. This new development has created a dynamic not seen in the heyday of the ANC, when its dominance was assured.
Writing in City Press on 21 January under the headline “Why are Zuma and Mbeki so tough on Ramaphosa?” Modidima Mannya concludes that “one cannot be faulted for thinking they hate him”.
Hot on the heels of Mannya comes Professor Musa Xulu, a retired KwaZulu-Natal academic, who is quoted by Daily Maverick on 25 January as saying: “I don’t know what Zuma can say to the electorate outside of his ANC upbringing. What is worse is that all his efforts seem to come from this seemingly very deep hatred of President Ramaphosa as a person.”
Zuma’s attempt to get his ex-wife to lead the ANC in his place in 2017 was thwarted by the decision of the ANC cadres to elect Ramaphosa instead. Zuma’s grievance is that Ramaphosa is alleged to have stolen that internal ANC election. He was unopposed in the next ANC leadership election five years later.
Those concerned with the survival of the values embraced in our Constitution should pay attention to the musings of these thoughtful observers of politics in South Africa. Free and fair elections are an impossibility when hatred and fear become the order of the day. The democratic project could be derailed.
Far better that the electorate, the ordinary voters of the country, give those who engage in the politics of hatred short shrift both in the campaign period and at the polls.
The article by Mannya airs legally ill-informed speculation concerning the alleged hatred of Ramaphosa by two of his predecessors in office. Advocate Mannya is, of course, entitled to express his opinions – that is his right under the Bill of Rights – but surely he knows that any opinion that is based on a proper conspectus of the relevant facts and applicable law is likely to have more traction than one that is not.
In South Africa we bar from Parliament [and accordingly from the presidency – see C86(1)] anyone who has been sentenced to more than 12 months’ imprisonment. The barring is only lifted five years after the sentence has been completed – see C47(1)(e). Presidents are limited to two terms in office – see C88(2). The executive authority of South Africa is vested in the president – see C85.
Neither Zuma nor Mbeki are eligible to be president again, perish the thought, and Zuma is barred from serving in the next Parliament too. Mannya’s discussion of experiences in other countries, while interesting, is irrelevant to the fate of much-abused voters in South Africa.
The powers of the president are limited by the Constitution. Presidents must uphold the rule of law and act in a manner consistent with the Constitution in terms of their oaths of office – see C95. Any conduct inconsistent with the Constitution is invalid – see C2. Democratic centralism as practised by the ANC is a concept that is foreign to our multiparty democracy under the rule of law – on the contrary, it is a tenet of the National Democratic Revolution (NDR) and has no place in sound governance.
Cabinet has collective responsibility and must account to Parliament for the exercise of its powers and the performance of its functions. The entire executive takes an oath of office that obliges all to affirm faithfulness to South Africa and obedience to its Constitution – see C95.
A conspectus of the sections of the Constitution referenced above leads to a better perspective of the legal framework within which relations and actions of leaders can be discussed. The NDR is frequently at odds with constitutional principles (rather than complementary to them as Mannya implies.)
Lest we forget
Mannya glosses over the evidence available that suggests that all three presidents are not averse to corrupt activities and illegal fundraising for the ANC. He forgets that Archbishop Desmond Tutu pointed out long ago that the apartheid corruption “gravy train” stopped in 1994 just long enough for the ANC to climb aboard.
It is notoriously well known that the ANC’s 1999 election campaign was financed by bribes taken in relation to the arms deal. Mbeki will go down in history for his role in those deals, his soft diplomacy that has left Zimbabwe in ruins, and his HIV/Aids denialism that cost more than 300,000 lives in South Africa. During his evidence before the generally useless Seriti Commission of Inquiry into the arms deal, Mbeki admitted that arms industry middleman Tony Georgiades made a donation to the ANC.
Apprehension within the ANC over Mbeki’s authoritarian tendencies enabled Zuma to snatch the leadership of the ANC from under Mbeki’s nose at Polokwane in 2007. To the knowledge of those voting for Zuma, his financial adviser had been convicted in 2005 for corrupting Zuma (the related charges against Zuma are still pending). That is why Mbeki removed Zuma from his deputy presidential post in June 2005.
Also before Polokwane, Zuma had avoided conviction on rape charges by claiming consensual unprotected sex with a troubled HIV-positive young woman who was the daughter of his Struggle-era comrade; followed by a shower for prophylactic purposes.
If the fear of losing grants is the best argument Ramaphosa has for his re-election campaign, he must take grant beneficiaries for fools.
Mannya draws a veil of silence over Zuma’s conviction and 15-month sentence on a charge of contempt of court for disobeying an order of the Constitutional Court. He also does not mention the reams of evidence given at the Zondo Inquiry.
It beggars belief that a person so lacking in morality, probity and integrity can command any political support. In the opinion of Professor Xulu, the latest political adventure of Zuma is unlikely to find much traction with the voters of South Africa.
Ramaphosa has his overstuffed Phala Phala couch to explain. A former chief justice has found that, on the face of it, Ramaphosa has a case to answer, but the ANC, having learnt nothing from its mendacious experiences with Zuma’s Nkandla “firepool”, abused its majority in Parliament again to delay the dreadful day of reckoning for its leader.
Ramaphosa is surely in trouble due to his failure to report the theft of the dollars stuffed in the couch to the Hawks, as he is obliged to do in law. What he was doing holding so many dollars for so long has yet to be credibly explained.
Julius Malema will not allow the ANC to forget that it was Ramaphosa, then a mining magnate, who called for “concomitant action” before the massacre of striking miners at Marikana. It is no coincidence that Ramaphosa presided over Malema’s expulsion from the ANC.
Ramaphosa knows full well that the payment of Sassa grants is a constitutional obligation of any government in South Africa, not a gift from the ANC that will end if the ANC is voted out of power. If the fear of losing grants is the best argument he has for his re-election campaign, he must take grant beneficiaries for fools.
The better question to pose among all the fear-mongering and allegations of hatred is: “Why do so many voters in South Africa continue to vote for a party led by the likes of these three presidents – Mbeki, Zuma and Ramaphosa?” DM