South Africa

Analysis: Do the DA’s disciplinaries show consistent priorities?

By Rebecca Davis 2 November 2015

The news that senior Democratic Alliance MP, Dianne Kohler Barnard, is to be expelled from the party has been met with mixed reactions. Kohler Barnard was found to have brought the DA into disrepute by re-publishing a Facebook post expressing nostalgia for Apartheid. Does the DA’s action in this regard match the punishment meted out to other misbehaving MPs? By REBECCA DAVIS.

During a Democratic Alliance protest held before the State of the Nation Address in February, this year, senior DA Member of Parliament, Archibald Figlan, forced a female staffer to touch his crotch. The woman, who chose to remain anonymous at the time, laid a complaint against Figlan shortly thereafter.

Her account of the events was reportedly backed by three supporting affidavits from co-workers. The Cape Times reported at the time:

A co-worker at the time claimed that Figlan came up behind the woman and demanded to know why she did not respond when he called her name.

She told him she was busy with a picket and he grabbed her hand and put it on his private parts, saying, ‘picket here’,” said the colleague.

In June, Figlan was found guilty of contravening five clauses of the DA’s federal constitution. Figlan kept his membership of the party, subject to certain conditions: A donation of R12,000 to the National Institute for Crime Prevention and Rehabilitation of Offenders (Nicro); monthly two-hour community service sessions with Nicro, and a letter asking for forgiveness from the complainant. Another element of Figlan’s punishment was that the MP, who previously served as a deputy minister in the DA’s shadow cabinet, could not be considered for leadership positions within the party for five years.

Figlan chose not to appeal his sentence. When asked, at the time, whether Figlan’s punishment was sufficiently severe, the DA’s James Selfe replied: “This is a man who has shown severe remorse. This is an exceptional case in an otherwise flawless 12-year long political career.”

Nonetheless, there were reports of bemusement, among DA MPs, that Figlan had not been stripped of his party membership. Both Figlan and Kohler Barnard, were subjected to the same disciplinary process. Kohler Barnard’s offence, as has been well publicised, was the re-posting of a Facebook post written by a former journalist which suggested that things were better under the Apartheid government.

Figlan and Kohler Barnard were found to be in contravention of Section 2.5.4 of the DA’s constitution, which holds that any member may be guilty of misconduct if he or she commits a range of possible offences. These include: “deliberately act[ing] in a way which impacts negatively on the image or performance of the party”; “bring[ing] the good name of the party into disrepute or harm[ing] the interests of the party”; and “in any way intimidat[ing], or sexually harass[ing] in any manner, any member of the party or staff members”.

At her disciplinary hearing, Kohler Barnard would have had the right to legal representation, following which the DA’s legal commission, chaired by former National Prosecuting Authority prosecutor, Glynnis Breytenbach, made recommendations to the party’s federal executive. The federal executive met late last Friday afternoon, and in terms of the DA’s constitution, they had the power to decrease (or increase) the proposed sanction against Kohler Barnard.

Among the range of possible disciplinary actions which could have been taken against Kohler Barnard were the suspension of her membership for a specific time; a fine; or suspension from positions she held in Parliament. This would have been similar to the remedial action taken against Figlan. City Press subsequently reported that the findings of the DA’s legal commission were not accepted by the federal executive. This was allegedly the source of some conflict in the party’s federal council meeting on Saturday. There are unverified reports that DA leader, Mmusi Maimane, and chief whip, John Steenhuisen, both attempted to convince fellow federal executive members that Kohler Barnard be permitted to stay within the party.

Aside from the issue of morality, it is not hard to see why some of the DA’s top brass would, from a strategic perspective, have wanted to throw the book at Kohler Barnard. Publically endorsing nostalgia for Apartheid is anathema to a party which is frantically working to cast off its “white” reputation. In April 2013, a Pondering Panda survey found that 52% of black respondents believed that, if elected, the DA would bring back Apartheid. Kohler Barnard’s Facebook post seemed to lend legitimacy to that perception. It matters little that, re-publishing of the post was unintentional, as she claimed.

The disciplinary action taken against Kohler Barnard can, then, be seen as a necessary message to voters that such views are anachronistic and unacceptable to the current incarnation of the DA. Those who point out that other DA MPs have previously been in hot water over social media postings, and largely escaped sanction, fail to note that the DA’s social media policy was only adopted in November 2014.

In corporate South Africa there have been a number of high-profile examples of employees suspended or fired for inappropriate social media activity; the DA is hardly an outlier in this regard. The more troubling comparison, however, is with the relatively light disciplinary action taken against Figlan, for an apparently publically witnessed act of sexual assault. Figlan’s act was glossed as “sexual harassment”, but the Sexual Offences Act makes it clear that sexual assault includes indirect contact between the genitals of one person and another part of the body of another person, without their consent.

Kohler Barnard can still appeal her expulsion, and has indicated that she intends to do so. Notwithstanding this, however, how should the South African public understand the difference in the remedial outcome meted out to Kohler Barnard and that given to Figlan? James Selfe said at the time of Figlan’s case that one of the aspects that counted in his favour was that he had shown “severe remorse”, but so too has Kohler Barnard, at least in public.

The Federal Legal Commission and in turn the Federal Executive, consider each case fairly and on its merits taking into consideration both mitigating and aggravating factors,” DA spokesperson Phumzile van Damme told the Daily Maverick.

Because the disciplinary hearings do not take place in public, we don’t know what “mitigating and aggravating” factors were at play in each case. What the Kohler Barnard case does show is that the DA is not afraid to take severe punitive action when it wants to, and the message we’re left with is that sexual assault is not considered worthy of the strongest possible penalties.

Of course, it isn’t just the DA which fails women in this regard. As we noted in February, the ANC MP who chairs the National Council of Provinces committee which deals with women’s issues, was being investigated for allegedly beating up his ex-lover. The EFF in Gauteng has maintained, as a leading figure, a man previously fired from a social justice organisation over a rape charge. As we asked then, and continue to ask: When will our leaders start leading by example? DM

Photo: Dianne Kohler Barnard at the launch of Tony Leon’s autobiography, On the Contrary, at Exclusive Books, Hyde Park. (Photo by Jonathan Ball blog at BooksLive)

Read more:

  • Politicians behaving badly: When will leaders walk the talk on respect for women? in Daily Maverick.
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