Malema ruling: the what, the how and the why
- Sipho Hlongwane
- 10 Nov 2011 06:22 (South Africa)
We were all expecting some sort of sanctions against the ANC Youth League leaders, but nothing as drastic was announced by Derek Hanekom at Luthuli House on Monday. Julius Malema has been suspended from the ANC and the ANCYL for five years, and League’s Floyd Shivambu has been suspended for three years. That screeching sound you hear is the shifting of tectonic plates in South Africa’s political landscape. By SIPHO HLONGWANE.
Here’s what you really want to know: ANC Youth League president Julius Malema has been found guilty on several charges, and suspended from the party and the league for five years. Floyd Shivambu, ANCYL spokesman, is suspended for three years.
- ANCYL deputy president Ronald Lamola, secretary general Sindiso Magaqa, deputy secretary general Kenetswe Mosenogi and treasurer general Pule Mabe have also received suspended sentences. Malema was also found guilty and sanctioned under this particular ruling, but more on that later.
- Magaqa was suspended for an additional 18 months, suspended for three years.
- They all have 14 days to appeal the decision to the national disciplinary committee of appeals. This is the last body of appeal, though, by some strange twist, the matter may be referred to the national executive committee for review (not appeal).
The announcement on the ruling was read out by the national disciplinary committee chairman Derek Hanekom, with the rest of the committee, Susan Shabangu, Ayanda Dlodlo, Collins Chabane, Febe Potgeiter-Gqubule and Playfair Morule, in tow.
Hanekom’s announcement was a master class in laying out groundwork. Though the case documents themselves run to 136 pages, the deputy science and technology minister carefully summarised the legal groundwork covered and the reason why the different charges were upheld.
Settle back, get some cocoa if you’d like. This gets complicated in places.
It was very important for the NDC to mention the mood of the party and why it felt that certain things were important. Hanekom went through some of the fundamentals of the ANC, including Rule 3 in its constitution, which states:
- 3.4 The ANC shall, in its composition and functioning, be democratic, non-racial and non-sexist and against any form of racial, tribalistic or ethnic exclusivism or chauvinism.
- 3.5 While striving for the maximum unity of purpose and functioning, the ANC will respect the linguistic, cultural and religious diversity of its members.
Also pertinent was the directive issued at the third ANC national general council in Durban last year, which stated:
“Council was frank in acknowledging that tendencies of ill discipline and misconduct had set in within various structures of the movement. This 3rd National General Council, the delegates resolved should mark a decisive turning point in addressing all the negative tendencies that eroded and pose danger of eroding the organisational integrity and very character of the ANC.
“In this regard delegates stated without equivocation that there should not be confusing signals and messages from the leadership on matters of discipline.”
Hanekom then dealt with the procedural stuff that arose during the hearings. The NDC has an encyclopaedic knowledge of the ANC constitution, as well as that of the ANCYL, something which the respondents and their legal representatives didn’t seem to have. Some of the arguments raised were knocked out of the stadium by the NDC because they were not based on fact. For instance, Malema’s people argued that the ANC Youth League is independent of the ANC. Hanekom patiently deconstructed and then smashed the argument, as he explained that the ANCYL arises out of the ANC (in terms of ANCYL’s own constitution, mind you), how its main objective is to support and reinforce the ANC and how the ANCYL constitution expressly subjects its members to ANC discipline.
The respondents raised six such objections to the hearings, none of them was successful. This time, all the charges stood.
There were actually four different hearings, or cases.
The first indicted Malema, Mabe, Magaqa and Mosenogi for deliberately disrupting a meeting of the ANC national officials and for undermining the authority of the secretary general of the ANC. The respondents were found guilty as charged and all were handed two-year membership suspensions, suspended for three years, provided they don’t contravene any provision of the ANC code of conduct in that period.
The second hearing dealt with secretary general Sindiso Magaqa for sending out a derogatory statement on 2 August 2011, in which he “prejudicially” said that public enterprises minister Malusi Gigaba sided with “imperialist forces”. Magaqa’s membership was suspended for 18 months, suspended for three years.
The third hearing charged ANCYL spokesman Floyd Shivambu on three counts: swearing at a journalist (and thereby making the ANC look bad), issuing a statement that provoked serious divisions or a breakdown of unity in the organisation by making pronouncements on Botswana that were contrary to ANC policy on foreign matters. Shivambu was found not guilty on the second count of misconduct, but only because there was an obvious overlap between the first two charges, and thus no need to find him guilty again.
He was handed a three-year suspension of membership and ordered to vacate his position in the ANCYL national executive committee.
The final hearing, in which Malema received his five-year membership suspension, saw four charges levelled against Malema. These were infinitely more interesting than the others, because of the potential implications for public statements made by ANC members in future.
The first charge said Malema provoked serious divisions or a breakdown of unity by saying: “In the past, we know that President Mbeki used to represent that agenda very well” and further that
“The African agenda is generally no longer a priority, and we think that there is a temptation by the coloniser and the imperialist to want to re-colonise Africa in a different, but sophisticated way – and President Mbeki stood directly opposed to that type of conduct.”
The NDC said it was up to Malema to explain his statement, and all he did was say it wasn’t a dig at President Jacob Zuma. And, though the committee was careful to say that comparisons between different leaders wasn’t of itself objectionable, the way Malema did it was prejudicial to the current administration and thus aimed at provoking serious divisions.
Malema was found guilty as charged. What sort of chill will this put on intraparty debate? Will members be afraid to raise issues of leadership? Could this ruling be used against the likes of Paul Mashatile, who wants the leadership debate opened ahead of Mangaung?
The second count related to Malema saying that Botswana’s regime posed a serious threat to Africa, and he was found guilty on that too.
The third charge was the weakest of all. Malema was accused of racism and political intolerance for statements uttered at a rally in Galeshewe. The accusers didn’t bring enough evidence to find Malema guilty.
That first disciplinary hearing against Malema in May 2010 came into play, because he had been handed down a suspended sentence then for sowing division in the party. That suspension was revoked, meaning Malema was effectively kicked out of the party for two years.
Also, Malema was suspended from the ANC, the ANCYL presidency, its national executive committee and even ordinary membership for five years.
The ANCYL has already indicated that it will appeal all the sentences.
The rulings were about as watertight as the NDC could make them, and the ANCYL leaders didn’t help themselves by making sloppy presentations. However, the ANCYL has said its appeal would be based on the argument that the respondents didn’t have enough time to present mitigating circumstances.
“The ANCYL has already formally registered its outrauge[sic] at the fact that the NDC has meted out sanctions without affording the charged members their fundamental right to present mitigating circumstances,” the statement sent out by the ANCYL, in the name of Sindiso Magaqa, reads. “This is one of the most basic and primary right[sic] which is afforded to any person who is charged in any forum. Even the most hardened of crimininals[sic] enjoy this basic right. While the ANCYL NEC is still to consider the rulings, this procedural lapse alone is a good ground of appeal.” DM
- Public announcement of the ANC National Disciplnary Committee hearings of Comrades Julius Malema, Ronald Lamola, Pule Mabe, Sindiso Magaqa Kenetswe Mosenogi and Floyd Shivambu in the ANC website
Photo: Sipho Hlongwane for iMaverick.