The Freedom Front Plus (FF+), which apparently enjoys strong support among Afrikaans speaking white people in far-flung metropolitan areas such as Carolina, Bapsfontein and Putsonderwater, has lodged a formal objection with the Independent Electoral Commission (IEC) against the registration of Julius Malema’s Economic Freedom Fighters (EFF) as a political party. The FF+ claims it would be “unconstitutional” for the IEC to register the EFF as a political party. For both formal legal reasons and substantive principled reasons, the objection will fail. Here is why.
Competition between political parties with sometimes radically different ideologies and political programmes (and sometimes identical ideologies packaged in drastically different ways) is at the heart of any functioning constitutional democracy. Based on the assumption that the state should protect the right of political parties and their leaders to advance even radical and (to some) offensive or threatening ideas or policies, a system of constitutional democracy invests extraordinary trust in voters to make wise electoral choices to advance their own interests and the collective interests of the country.
(Often this trust can seem to be entirely misplaced. Voters often make the most absurd electoral choices in direct opposition to both their own short-term self-interest and the long term interest of the country. For example, voters in the United States twice elected a crook – Richard Nixon – as president; then voted for an actor famous for appearing in a movie with a chimpanzee (the movie: Bedtime for Bozo; the bozo: Ronald Reagan) before embarrassing themselves by supporting George W Bush. Voters in Italy voted for Silvio Berlusconi as Prime Minister – despite the fact that you just have to look at him to know he is a slimy criminal. And in the United Kingdom, Margaret Thatcher – who had the compassion of a starved and crazed Rottweiler – won three consecutive elections as Prime Minister.)
When political parties are banned or when they are disallowed from participating in elections, serious questions arise about the quality of the democracy in that country. That is why the FF+ is registered as a political party in South Africa – despite the fact that its policies and programmes offend the vast majority of South Africans. That is also why the African Christian Democratic Party (ACDP) is registered as a political party – despite its belief in a vengeful and homophobic God.
Ironically, the attempt by the FF+ to get Malema and his outfit barred from competing in elections merely because the EFF propagate policies that make the FF+ uncomfortable, poses a far greater threat to our democracy than anything Malema and his party may have said or done.
The FF+ claims that the registration of EFF would be “unconstitutional” because the EFF “propagates nationalisation of land, mines, banks and other assets without compensation, and specifically so upon a racial basis”; because Malema has been found guilty of hate speech which is “unconstitutional”; and because the word “Fighters” in their name is inappropriate for a democratic dispensation.
Legally, this is (and I will be kind) utter nonsense.
The Constitution does not contain any provision that bans individuals or political parties from propagating nationalisation or from propagating changes to the Constitution in order to allow for the nationalisation of mines, banks or property of white South Africans.
Just as the Democratic Alliance can propagate changes to the Constitution to alter the procedure through which judges are appointed, so the EFF can propagate the nationalisation of white people’s land. Just as the ANC can propagate the abolition of provincial government, so the EFF can propagate the nationalisation of banks. Just as the ACDP can propagate the abolition of the sexual orientation clause in the Constitution, the EFF can propagate the nationalisation of mines.
Of course, the rest of us are free to argue about whether these programmes and policies are wise or whether they promote or threaten our democracy. We can vehemently oppose certain changes to the Constitution on the basis that these changes would undermine the rights of some or would be bad for our democracy.
We can also argue that the leader of a political party (including the FF+) is acting in ways that endanger the pluralistic and open nature of our democracy. For example, when a political leader attacks the notion of judicial review or tries to discredit the judges of the Constitutional Court by calling them counter-revolutionaries, I, for one, will lambast that leader for what I see as his or her undemocratic tendencies. (Bloody agent!) But I would never dream of arguing that the political party that the leader in question belongs to should not be allowed to take part in an election, merely because I think its leader is talking dangerous nonsense.
South Africans from different ideological perspectives are not always comfortable with democratic debate. They often conflate criticism with censorship and try and prevent others from criticising by claiming that the criticism is illegitimate or undemocratic. They also often wrongly conflate criticism of a political party or its leaders with undemocratic moves to prevent that party from representing the electorate. There is nothing undemocratic in calling a politician a bumbling fool, a charlatan or a selfish and corrupt self-enricher – although you might be slapped with a defamation suit if your claims are false.
Of course, we could always decide to change the Constitution to include a ban on all political parties who propagate any changes to the Constitution (but that would be an exceedingly silly amendment to pass). We could also change the electoral law to allow the IEC to refuse to register political parties who promote changes to the Constitution. The Constitutional Court will then have to decide whether such amendments to the legislation are constitutionally valid. (It will almost certainly find that such amendments are not constitutionally valid.)
Legislation which would allow the IEC to refuse to register a political party whose programmes or policies threaten the very existence of the democratic state may arguably pass constitutional muster. But no such legislation exists at the moment. In the absence of such legislation the IEC does not have the legal authority to refuse to register a political party merely because the FF+ feels threatened by that political party’s programmes and policies.
Section 16 of the Electoral Commission Act does allow the IEC to refuse to register a political party if the proposed name or emblem of the political party “portrays the propagation or incitement of violence or hatred or which causes serious offence to any section of the population on the grounds of race, gender, sex, ethnic origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language”.
The name or emblem of the EFF could not possibly be said to portray the incitement of violence against any group merely because it includes the word “fighter”. If you agreed with this ridiculous assertion you might as well support the view that any politician who talks about the need to fight crime is guilty of hate speech. A political leader who says he or she will fight corruption, would then also have to be found guilty of inciting violence against corrupt politicians and business men and women.
Speaking of hate speech, contrary to what the FF+ might believe, the Constitution does not ban hate speech of any kind. Section 16(2) of the Constitution does say that certain forms of speech do not enjoy constitutional protection, but the section does not ban any speech. It merely authorises the legislature to regulate narrowly defined forms of hateful speech. The claim that hate speech is “unconstitutional;” is therefore embarrassing nonsense.
The IWC can only do what the empowering legislation authorises it to do. It can therefore only refuse to register a political party in circumstances authorised by the Electoral Commission Act. But the Electoral Commission Act does not authorise the IEC to refuse to register a political party because one of its leaders have been found guilty of hate speech. Even if the leader is found guilty of hate speech a thousand times, there is no law that authorises the IEC to refuse registration to the party lead by that leader.
What the FF+ is therefore in effect asking the IEC to do, is to take the law into its own hands, to take action unauthorised by any law and thus to flout the Rule of Law, one of the founding values of our Constitution. Its submission to the IEC therefore exposes it as an undemocratic and potentially authoritarian political party who is prepared to flout the law if it would advance its own interests. Such a party, so it seems to me, poses a far greater risk to our democracy than the EFF ever would. 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.