The Democratic Alliance announced on Monday that it would once again be asking the speaker of Parliament to table a debate about the way in which President Jacob Zuma is doing his job. Previously, the ANC merely said no, and that was that. With the courts starting to express a reluctance to get involved, where is the DA to turn to make itself heard?
The ultra-religious Chief Justice Mogoeng Mogoeng may have been in the thick of it over the Easter weekend, what with it being one of two of the most important Christian holidays, but his mind would have been on matters of state too. Or rather, the limits of state – the Constitutional Court has been called upon by the Democratic Alliance to adjudicate in a fight it has with the African National Congress in Parliament. Last November, the official opposition party, in league with seven others, attempted to table a motion of no confidence against President Jacob Zuma. Thanks to a loophole in the rules, the ruling party was able to block the motion from ever reaching the floor.
Like it has done on many occasions before, the DA went to the courts. Unlike previous occasions, the courts were not as obliging. The High Court dismissed the application. Despite the Parliamentary speaker Max Sisulu promising to table the debate for 28 February, and to close the loophole in the rules when situations arose of a deadlock within the programming committee over motions of no confidence, an application was made to the Constitutional Court.
On Thursday, lawyers for Sisulu argued that it was not necessary for the judges to make a pronouncement to the lacuna (gap in the law), as Parliament was already in the process of fixing the problem. Judgment was reserved.
The DA’s frequent tactic of relying on the courts to get the executive (or ruling party in the legislature) to act in a certain way has finally worn thin. When he dismissed the High Court application, Judge Dennis Davis warned against the politicisation of the judiciary.
He said: “Where the Constitutional boundaries are breached or transgressed, courts have a clear and express role. And must then act without fear or favour. There is a danger in South Africa, however, of the politicisation of the judiciary, drawing the judiciary into every and all political disputes, as if there is no other forum to deal with a political impasse relating to policy, or disputes which clearly carry polycentric consequences beyond the scope of adjudication.”
Given how that application went, it is difficult to give the DA comfort that things will go differently at Constitutional Hill.
On Monday, the party announced that it had unsuccessfully called on acting speaker Nomaindia Mfeketo to convene a Parliamentary inquiry into the deaths of 13 South African National Defence Force troops in the Central African Republic last month. It said that it would table an urgent resolution to compel the president to bring the surviving soldiers back.
The deployment of South African troops to the CAR can be called controversial, at the least. In January, presidential spokesperson Mac Maharaj announced the deployment, saying that it was to “assist with the capacity building of the CAR defence force and would assist CAR with the planning and implementation of the disarmament, demobilisation and reintegration processes”.
In March, the South African soldiers were unable to prevent a coup d’état that toppled the regime of François Bozizé – who fled to neighbouring Cameroon, then Benin – that saw them face fire from the advancing rebels and even fire from mutinying CAR army units. The accusations against Zuma are that the deployment was not carried out properly because parliament was not properly informed. Furthermore, the basis of the deployment has been questioned as well. The soldiers went on the basis of a bilateral agreement between the Zuma and Bozizé governments – which would have ceased to exist once the rebels seized power. Any deployments thereafter (which reportedly happened) effectively put South Africa in a state of war against the CAR.
While the CAR situation is, in terms of possible consequences, far more serious than anything the DA wanted to give Zuma trouble for last, the party is seemingly just as unable to give effect to the laws of Parliament without the cooperation of the majority ruling party.
The office of the ANC chief whip issued a statement last week condoning the deployment of troops, as did Luthuli House. That, presumably, nullifies any chance of the ruling party actually granting the DA one of its requests to debate the suitability of Zuma to lead the country.
What is the opposition to do next?
Our democracy was designed to make the president accountable to Parliament. What the drafters of the Constitution failed to see is that this system fails when one party has a huge majority in Parliament. That party would naturally vote in its person to be president, and can exert its numerical power to protect the executive leader from parliamentary scrutiny. This is precisely what happened when the opposition parties tried to have a motion of no confidence debate.
At the moment, the opposition parties are reduced to Parliamentary questions (even though this is decidedly not the limit of its available powers in terms of holding the president accountable), which are often answered in an unsatisfactory manner by the president. This is badly unhealthy for our democracy. Never mind the fact that the mission to the CAR remains unexplained.
All of this could change with a single judgement from the Constitutional Court, which could allow smaller opposition parties to wield Parliament’s power of confidence to greater effect; but don’t bank on that.
Still. the DA’s quest to the court may not be entirely fruitless. The ConCourt may decide to order Parliament to rewrite the law to prevent majority parties from blocking motions of no confidence from being tabled at all, by changing the clause which states that a motion can only be filed on the basis of consensus of all the parties represented in the Programming Committee of the National Assembly. As the law currently stands, it is unconstitutional, argues law expert Pierre de Vos.
Perhaps the debate that the DA ought to be starting is about the very nature of the office of the presidency. South Africa is one of a tiny handful of countries that elect their presidents via a parliament, but then grant the position about as much power as presidents that are directly elected by the people. This is no problem if Parliament can effectively exercise the power to declare a motion of no confidence, but that is not true in what is effectivelly a one-party state. That is what we should be hearing: that the reason why the DA can only symbolically do its job as the opposition is because the very laws that govern government prevent it from doing so. Before that argument can ring true, the party must first make a big show of exhausting all and every possible avenue left to it outside of court.
This kind of conversation from the DA need not be a tacit admission that the ANC will never be dislodged from power, but could form part of a great political marketing campaign.
Ultimately, that is where the DA is going to have to get its powers to curb the executive’s excesses from: the votes of ordinary South Africans. DM
Sipho Hlongwane is a writer and columnist for Daily Maverick. His other work interests also include motoring, music and technology, for which he has some awards. In a previous life, he drove forklift trucks, hosted radio shows, waited tables, and was once bitten by a large monitor lizard on his ankle. It hurt a lot. Arsenal Football Club is his only permanent obsession. He appears in these pages as a political correspondent.
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