The recent Constitutional Court judgment, declaring invalid the ANC Free State elective conference in June 2012, raises many questions about the integrity and fairness of internal democratic processes in the ANC. Although the judgment explicitly states that it does not relate to or affect the rights of delegates “who have been elected at properly constituted branch general meetings of the Free State province to serve as delegates at any other conference of the party”, it does suggest that all may not be well with elective processes inside the ANC.
From a Constitutional Law perspective the judgment is important as it affirms the strong link between internal party democracy and the right of citizens to take part in the political process and to vote in elections – a right guaranteed by section 19 of the Bill of Rights. Earlier decisions of the Constitutional Court – including the New National Party case dealing with the requirement that only voters in possession of green ID books could register and vote in elections – were criticised for the rather narrow and formalistic view of democracy. This judgment can be read as a slight correction on those earlier cases, as it embraces a richer and more nuanced conception of democracy.
The judgment reminds us that the health of our democracy depends on the health of democracy within political parties, as we mostly vote for political parties and not for candidates representing those parties. The leaders of political parties have a huge influence on who gets selected to represent us at various levels of government. Where political parties deny some of its own members the right to take part in leadership elections or where these internal leadership elections are corrupted by foul play and cheating, those political parties undermine our democracy.
All the judgments in the Free State case confirmed this link between the right to vote, democracy and internal party democracy. Thus Justice Yacoob stated that:
the right to participate in the activities of a political party confers on every political party the duty to act lawfully and in accordance with its own constitution. This means that our Constitution gives every member of every political party the right to exact compliance with the constitution of a political party by the leadership of that party.
In his minority decision, Froneman confirms that there “should be little doubt that the right to participate in the activities of a political party imposes a duty on every political party to act lawfully and in accordance with its own constitution”. In the majority judgment Moseneke and Jafta also affirms that the purpose of section 19 is not only to prevent the “wholesale denial of political rights to citizens of the country”, but also to ensure that political parties play their allotted role in our democracy.
Our democracy is founded on a multi-party system of government, but unlike the past electoral system that was based on geographic voting constituencies, the present electoral system for electing members of the national assembly and of the provincial legislatures must “result, in general, in proportional representation”. This means a person who intends to vote in national or provincial elections must vote for a political party registered for the purpose of contesting the elections and not for a candidate. It is the registered party that nominates candidates for the election on regional and national party lists. Political parties are therefore indispensable conduits for the enjoyment of the right to vote in elections.
If one chooses to become a member of a political party and wants to take part in its internal elections, one has a right to do so in accordance with the democratic rules of that party. The exercise of the right is protected not only against external interference but also against interference arising from within the party. It is true that section 19 of the Constitution does not spell out how members of a political party should exercise the right to participate in the activities of their party. This is left largely to political parties themselves to regulate. However, political parties may not adopt constitutions which are inconsistent with section 19. This means that the Constitution of a political party that limits or extinguishes the rights of members of that party freely and fairly to take part in its internal elections, could be declared invalid by a court as being in breach of section 19 of the Bill of Rights.
The difference between the minority and majority judgments relate to how they dealt with the “bare denials” of Gwede Mantashe that the Provincial Conference of the ANC in the Free State was tainted by any illegality and/or any breach of the ANC’s constitution and by the “bare denials” of Mantashe that any branch delegate not authorised to do so attended the provincial conference and that any branch delegate entitled to attend was denied the opportunity to do so. The minority accepted these broad denials as creating a factual dispute which, in terms of the rules applicable to cases dealt with on the papers, had to mean that the version of Mantashe had to be accepted.
The majority looked more closely at the papers and found that despite these broad denials, Mantashe did not deny many of the very detailed allegations of vote rigging and irregularity alleged by the applicants in this case. The court therefore accepted these allegations – never denied by Mantashe – as correct and found that there was widespread irregularity, if not fraud, involved in the Free State elective conference.
These irregularities include the failure to provide ANC members with an opportunity to lodge objections about the accuracy of the preliminary audits of branches, despite the fact that the ANC rules itself provided for such a process.
In another case the court accepted that the appellants had shown that at least 10 members of the Moses Mabhida branch were disallowed from participating in the elective bi-annual general meeting in breach of the right to participate in the activities of the ANC.
In another case no audit was conducted on Fidel Castro branch, thus disqualifying members of that branch from being represented at the Free State elective conference. This, it is alleged, was done because the Fidel Castro branch supported the so-called forces of change. This failure amounted to conduct inconsistent with the Membership Audit Guidelines and was thus an irregularity.
Another example of the manner in which forces for change were thwarted irregularly is described by the Constitutional Court in the following detail:
Mr Ramakatsa, the main deponent to the application, claims that his branch, the Joyce Boom branch (Ward 25) held a legitimate branch meeting on 6 May 2012; that the meeting was quorate and that branch delegates were properly elected to represent the branch at regional and provincial conferences…. His complaint is that his branch was excluded from the Provincial Conference and persons nominated for PEC leadership were not even placed on the ballot at the Provincial Conference. He further points out that there was no parallel branch structure in competition with the Joyce Boom branch. To this detailed complaint, the respondents say no more than that the branch meeting never took place on 6 May 2012. The answer also states that the membership of the branch was not audited in time for the branch to have delegates at the regional and provincial conferences. In effect, the answer admits that this branch and its members were not entitled to and did not participate in the conference. Other than the bare denial, the respondents do not furnish even the slightest evidence that the meeting did not take place or of the invitations they sent to the branch to submit to audit. This conduct is inconsistent with the requirements of the ANC’s constitution.
In other cases several NEC members of the national audit team who were deployed to branches were supposed to attend fresh meetings of branches to select delegates but failed to attend such meetings. As a result, the meetings did not take place. This failure had the effect of denying the affected branches representation at the Provincial Conference. However, strangely, the branches which were due to have fresh electoral meetings were represented by “delegates” at the Provincial Conference. This means that the “delegates” represented the branches concerned in a manner inconsistent with the ANC’s constitution because they were not elected at a properly constituted branch general meeting.
Reading through these list of irregularities, it is difficult not to conclude that those in charge of the Free State ANC and some NEC members who supported the re-election of the PEC (and perhaps President Jacob Zuma), at best turned a blind eye to serious irregularities and pre-conference vote rigging and at worst participated in it.
It might be that no such irregularities occurred when, several months later, branches were asked to nominate candidates for Mangaung and to select delegates to vote at Mangaung. The Court was not asked to and did not make a finding about whether the selection of delegates to Mangaung was unlawful or not. But given the systemic nature of the irregularities in the Free State in an elective conference which took place just a few months earlier, given the fact that Kgalema Motlanthe did not manage to receive the support of a single Free State delegate at the Free State nominations conference, and in the absence of evidence that the irregularities were dealt with properly by Gwede Mantashe who, in any case, had a vested interest in the outcome of the process, it might not be unreasonable to question to the legitimacy of all the Free State delegates represented at Mangaung.
Given the fact that many ANC branch members would probably have voted for President Zuma despite Nkandlagate, despite Marikana, despite the Secrecy Bill and the Traditional Courts Bill, and despite the fact that Zuma had received more than R7 million from various benefactors, some of whom he later did favours for, these irregularities might very well not have made a difference. But it does raise questions about the manner in which internal elections within the ANC are managed and whether the outcome of such elections can, without more, be deemed as being legitimate. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
"A long habit of not thinking a thing wrong gives it a superficial appearance of being right and raises at first a formidable outcry in defence of custom. But the tumult soon subsides. Time makes more converts than reason." ~ Thomas Paine