The ANC, the principal architect of our national Constitution, has absolutely no right to argue for any action by ANC MPs that would be disrespectful of the provisions of this Constitution. By THABO MBEKI
On August 8, 2017 our National Assembly convened to consider and vote on a Motion of Non-Confidence in the President of the Republic, the Honourable Jacob Zuma.
Following a judgment which had been handed down by our Constitutional Court, the Speaker of the National Assembly, Honourable Baleka Mbete, had prescribed that the Members of the National Assembly, our MPs, would respond to the Motion through a secret ballot.
It is a matter of public record that this no-confidence motion failed.
This was because the majority of the MPs, voting in a secret ballot, effectively confirmed their confidence in the President of our Republic.
The process in which the National Assembly engaged, resulting in this outcome, represented an admirable manifestation of the health of our democracy.
This was so because the facts of the open and transparent debate in the National Assembly, and the subsequent secret ballot, made it possible for the National Assembly to illustrate what we should understand about the democratic functioning of our national legislature.
On the face of it, this should have settled the matter about the important issue of whether, in practice, ours was functioning as a democratic country, consistent with the objectives for which the ANC and the rest of the National Liberation Movement had engaged in a difficult struggle for many decades.
However, during the debate generated by the motion of no-confidence an important matter arose about whom our MPs represent.
The leadership of the ANC has answered this question in an unequivocal manner.
It has said that the MPs serve in Parliament as representatives of their political parties and must therefore consistently speak and vote to defend and advance the views of their political parties.
However, twice in a very short period, our Constitutional Court has had to reflect on this very same matter of whom our MPs represent.
The Constitutional Court has correctly sought to answer this question by relying solely on what our Constitution says, that is by interpreting what the Constitution says.
In this context the Constitutional Court has emphasised that the transition from apartheid to democracy in our country resulted in a national agreement that the new South Africa would be a constitutional democracy.
In this regard the Court has correctly drawn attention to the provision in our Constitution that the Constitution is the supreme law of our Republic, which all other law and State action must respect.
That supreme law defines the new South Africa as a constitutional democracy.
It spells out how the State institutions provided for in the Constitution should function, expressly to give effect to this constitutional democracy.
These institutions are the legislature, the executive, the judiciary and the Chapter Nine institutions in support of our democracy.
In the end, the Constitutional Court insists that all these institutions, and all those who serve in them, must understand that they must work within a framework that is specified in our Constitution, which prescribes that ours is a constitutional democracy.
The Constitutional Court made the determinations I have mentioned, concerning the fact of our being a constitutional democracy, in its 2016 and 2017 judgements respectively about the Nkandla and Parliamentary Secret Ballot matters.
In this context we must understand that the Constitutional Court was not making new law, illegally assuming the powers of our national legislature, but was only explaining and interpreting our national Constitution, consistent with its own constitutional mandate.
With regard to all the matters I have mentioned, what is the nub of the matter with regard to the responsibilities and accountability of the Members of Parliament?
The answer to this question has posed a vitally important and strategic challenge concerning the functioning of our democracy.
The ANC leadership has said that its Members of Parliament are accountable to the ANC, having been deployed by the ANC to serve as MPs. The ANC has therefore said that ANC MPs must vote on all matters essentially on the basis of decisions taken by the ANC leadership.
To the contrary, the Constitutional Court has said that the Constitution prescribes that all Members of Parliament are accountable to the people, the electorate.
The position advanced by the Constitutional Court, based solely on what our Constitution says, rests on an insistence that it reflects the nature of our State as a constitutional democracy.
The situation imposed on us by the contrasted views of the ANC and the Constitutional Court, dictates that we must take a position about who is right – that is between the ANC on one hand, and the Constitutional Court, on the other?
The question is, according to our Constitution – do the MPs in our legislatures represent the political parties to which they belong, or do they represent the masses of the people who elect our MPs?
It is not difficult to answer this question, especially as it is posed within such a binary context.
It is true that all those who serve in our legislatures are nominated as Candidate Members of these legislatures by our various political parties, including the ANC.
During election campaigns our political parties present these candidate members of our legislatures to our people as a whole, the electorate, requesting this electorate to elect these candidate members to serve as members of such legislatures.
Accordingly the matter at issue is very easy to resolve.
Simply, first the political parties nominate candidates for our legislatures.
Next, the people, the electorate, vote to decide whom among the political party candidates presented to them as candidates they want to serve as their representatives.
What this means is that whoever becomes a member of any of our legislatures, without regard to the nominating party, is elected by the people.
There is no Member of our Legislatures, [MPs], who serves as such having been elected on the basis of a voters’ roll made up of members of his or her Party.
All MPs, all of them nominated by their respective parties, become MPs not on the basis of such nomination, but because they are elected by the people on a non-partisan basis, i.e. by the electorate.
It is therefore logical that these MPs are accountable not to the political parties which might have nominated them, but to the electorate which elected them.
This means that the argument advanced by the ANC leadership that ANC members who serve in the National Assembly are accountable to the ANC in terms of the discharge of their constitutional responsibilities is wrong.
This is because Members of the National Assembly are bound by provisions that are detailed in the Constitution, which therefore supersede all other obligations that attach to membership of political parties.
Our Constitution, which defines the parameters for the functioning of our constitutional democracy, states, specifically, that Members of Parliament serve as representatives of the people, not parties – that is, the people who elected them, not those who nominated them.
Thus, in terms of the hierarchy of authority, all MPs have a binding, legal and constitutional obligation to serve the people – hence the argument that MPs should vote according to their conscience, rather than according to dictates from their political parties.
Everything I have said so far has sought to discuss constitutional matters.
However, we must also discuss matters that are specific to the ANC, our national governing party.
This means that we must return to the matter of what the fact of a constitutional democracy means and its implications with regard to the obligations of MPs.
In this regard, the ANC must understand that the fact of our Constitution and the constitutional democracy it establishes stands at the centre and heart of the historic victories of the National Democratic Revolution which the ANC led.
Accordingly, as prescribed in the Ready to Govern, and the Reconstruction and Development Programme (RDP) documents, as well as in Government actions during the period immediately following the 1994 victory, the ANC and the rest of the democratic movement insisted that one of the immediate tasks of this movement was to defend the democratic victory.
Among others in this regard, and of central importance, was the absolute imperative to defend the Constitution and all the democratic gains it represented.
In other words the ANC understood and determined that the 1996 constitution represented a seminal outcome of the costly struggle for the victory of the National Democratic Revolution (NDR) for which the ANC had engaged in struggle for more than eight decades.
Accordingly the ANC said this openly that our Constitution and the democratic system it established were an expression and an essential part of the victory of the NDR.
Among others, this victory, and therefore constitutional arrangement, confirmed and entrenched the system for which the ANC had fought for many decades – that the people shall govern.
During the years immediately preceding the formal negotiations to end apartheid rule, ANC delegations had engaged members of the white minority establishment in our country in a vigorous discussion about the real meaning of the objective stated in the Freedom Charter as – The people shall govern.
The ANC representatives had to disabuse their white minority interlocutors of their mistaken view that the Freedom Charter statement – The people shall govern – was merely a cunning expression to disguise the strategic objective of the ANC that – the ANC shall govern.
The ANC insisted that it was truly committed to the view that “the people shall govern” through a truly democratic system of government.
The ANC delegates at the Constitutional Assembly which concluded the 1996 constitution insisted that this constitution must be constructed in a manner which would respect the principle – the people shall govern.
This is exactly the principled commitment which obliged the ANC negotiators to argue in favour of a proportional representation electoral system, thus to ensure that even the smallest fragment of political opinion in our country would be represented in our legislatures.
This was part of the ANC insistence that in its political practise democratic South Africa must respect the principle that the people shall govern.
It was exactly to give expression to this inalienable principle and outlook that the ANC, the majority party in the Constitutional Assembly, proposed and agreed to the variety of arrangements which define our country, today, as a constitutional democracy.
As the Constitutional Court has said, correctly and acting within its mandate, our Members of Parliament must function in a manner which respects and gives expression to the long-standing objective of our struggle for national liberation, that – the people shall govern.
Accordingly the ANC leadership represented only its partisan interests when it made the assertion that in the context of the motion of no-confidence ANC MPs should vote according to the dictates of the ANC, on the basis that these MPs serve in parliament only to represent the ANC.
This was contrary to the revolutionary posture advanced by the ANC for many decades that all democratically elected representatives should serve the people, not partisan factions, thus to give practical expression to the perspective that the people shall govern.
In this regard, as the ANC had decided during its many decades of existence and struggle, all representatives elected through democratic process would serve as representatives of the people – thus, as I have said, to give expression to the inalienable principle of any genuine liberation movement that the people shall govern.
Those in the ANC and others who genuinely understand the purposes and outcomes of the national liberation struggle and the meaning of the national democratic revolution (NDR) know this that our constitution is one of the greatest victories of our National Democratic Revolution.
Accordingly one of the urgent and continuing tasks of the ANC and other motive forces of the NDR is to defend the constitution and entrench the democratic order it prescribes.
It is therefore very strange and puzzling to see members of the ANC doing everything they can to undermine respect for and strict implementation of the Constitution.
Obviously all the foregoing has direct relevance both to the matter of the recent National Assembly motion of no confidence in the President of the Republic, and the more general principle of the accountability of the MPs.
It is important that with regard to these issues all genuine members of the ANC must understand the long-established principles of the ANC as “a true parliament of the people”.
Of fundamental importance with regard to the historic tasks of the NDR is the achievement of the objective that – the people must govern.
Accordingly, all democratically elected representatives of the people, including members of the ANC, must understand that they serve in the legislatures into which they would have been elected, as representatives of the people – thus to give effect to the fundamental objective of the NDR that – the people shall govern.
It is therefore incorrect to say that those nominated by our various parties to various elected State positions, including as this relates to ANC members, are bound to act solely and exclusively according to whatever would serve the partisan interests of their parties.
The outcomes of the hard and protracted struggle for national liberation, one of whose strategically important results is the establishment of a constitutional democracy, prescribe that ultimately all democratically elected representatives serve in our legislatures as representatives of the people.
These, elected by the people on the basis of an inclusive and universal franchise, are elected to serve as representatives of the people, not the political parties which might have presented them to the people as candidates for election for whichever might be the contested posts to our legislatures.
All elected representatives are therefore accountable to the electorates which elected them.
In this regard many in our country argue for a further reform of our electoral system. Accordingly these have suggested that we should institute a constituency based system of representation for our national representatives, similar to our ward-based system of the election of some of our municipal councillors.
However, recognising the reality of our current electoral law and practice, it remains true that all candidates for election to any of our spheres of government are free to enter into any arrangements with the Parties which nominate them as candidates for election by the people.
However, such party arrangements would, could and should not compromise or undermine the obligation of representatives elected by the people to honour their obligation to account to the people – the electorate which elected them.
It is therefore politically incorrect, unconstitutional and illegal to argue that MPs must discharge their functions as MPs solely on the basis of their political Party affiliations, even if this would be in conflict with their Constitutional obligations.
The ANC, the principal architect of our (1996) constitution, has absolutely no right to argue for any action by ANC MPs that would be disrespectful of the provisions of this Constitution.
This includes the discharge of the obligatory constitutional task of the National Assembly, and therefore all its members, honestly to exercise oversight over the executive, regardless of the political affiliation of any of these MPs.
As it played the central role in the drafting of our constitution, determined to establish our country as a constitutional democracy, the ANC cannot, now, act in a manner which works to undermine or repudiate our constitution, one of the principal achievements of the National Democratic Revolution.
Members of the ANC who also serve as Members of Parliament must understand that they have an obligation to act as both loyal members of the ANC and representatives of the people.
In the end they must understand that they are elected by the people to serve in Parliament as representatives of the people – the non-partisan electorate which transforms candidate Members of Parliament into actual Members of Parliament!
Surely, the ANC can never be one of the political parties which argues that ANC MPs must act in any manner which disrespects the very constitution which exactly represents the victory of the National Democratic Revolution.
The masses of our people made enormous sacrifices over a long period of time, even before the formation of the ANC, to ensure that they exercise their right freely to determine their destiny.
At last these masses have acquired the possibility democratically to elect representatives they believe would serve and advance their interests.
It would be unworthy of and a betrayal of its historic stature that the ANC should now make the entirely false claim its members, democratically elected by the people as their representatives, are in fact nothing more than mere representatives of the organised formation called the ANC.
The challenge the ANC faces is to ensure that its policies and actual practice when it is in Government truly represent the popular will, such that its elected representatives are accepted by the people, the electorate, not as partisan representatives of the ANC, but as true representatives of the people.
Throughout the century of its existence, during which the black oppressed have voluntarily accepted it as their representative, the ANC has never believed that it constitutes the national collective, the people, thus to elevate itself far beyond its historical status as a mere representative of the people.
It should therefore never be that because of the democratic victory brought about by the enormous sacrifices of the masses of the people, the persons elected by these masses to serve in our legislatures should be stripped of their authority as People’s Tribunes, condemned to serve in our legislatures merely as representatives of the ANC, rather than as exemplars of the aspiration that the people shall govern.
Our Constitutional Court captured this sentiment very correctly when, in its historic March 31, 2016 judgement on the Nkandla matter relating to the competence of the Public Protector, it said that:
“The National Assembly, and by extension Parliament, is the embodiment of the centuries-old dreams and aspirations of all our people. It is the voice of all South Africans, especially the poor, the voiceless and the least-remembered…Parliament also passes legislation with due regard to the needs and concerns of the broader South African public. The willingness and obligation to do so is reinforced by each (National Assembly) Member’s equally irreversible public declaration of allegiance to the Republic, obedience, respect and vindication of the Constitution and all law of the Republic, to the best of her abilities. In sum, Parliament is the mouthpiece, the eyes and the service-delivery-ensuring machinery of the people. No doubt, it is an irreplaceable feature of good governance in South Africa.”
The ANC would insult these “centuries-old dreams and aspirations of all our people” if it asserted that its members of the National Assembly must abandon their constitutional obligation to serve as “the voice of all South Africans, especially the poor, the voiceless and the least-remembered…”
There can never exist any binding obligation on ANC MPs which can ever override the obligation on all such members to be “the voice of all South Africans”, not a collective merely to defend and promote the political supremacy of the ANC, right or wrong. DM
This article was made available by the Thabo Mbeki Foundation
Photo: Former South African President Thabo Mbeki says that the challenge the ANC faces is to ensure that its its elected representatives are accepted by the people, the electorate, not as partisan representatives of the ANC, but as true representatives of the people. Photo: TiksaNegeri/(Reuters)