Opinionista Brad Cibane 17 February 2015

SONA2015 and our Constitutional crisis: What happens when the fox guards the henhouse?

When the Speaker calls the opposition “cockroaches,” South Africa is in a Constitutional crisis. The fox is guarding the henhouse, and a polite conversation between Zuma, Malema and Maimane over tea and scones will not solve this problem. The best we can hope for is collapse – so that we can start again from scratch.

On Friday, 13 February 2015, South Africa’s democratic institutions imploded in less than an hour. Security officials stormed Parliament and dragged out members of the opposition. We were jolted the next morning by Speaker Baleka Mbete calling opposition MPs “cockroaches” that work for interests of the West. She hinted that the ruling party spied on the opposition: “We knew everything, including what the red overalls discussed. We knew who was going to stand first and what they were going to say”.

If Mbete’s blurts sound all too familiar, it is probably because you have heard or read the sentiments before. Not in South Africa, but from Zanu-PF officials in Zimbabwe and genocide agitators in Rwanda.

It turns out, South Africans are not even sleeping at the wheel; we are tied up in the boot as politicians drive off a cliff in search for a pot of gold. We’ve been deriding our African brethren, unaware that we are the butt of the joke. Karma!

Mbete and Modise were right about the rules

Central to the debate about South Africa’s Great Implosion is whether the Speakers were correct about the Rules. The reason for this debate, I suspect, is that South Africans want an easy way out. If Mbete and Modise were wrong about the rules, then they alone take blame. We can launch a #RemoveMbete campaign and move on with our lives. Unfortunately, that’s not the case.

Indeed, Rule 13 provides that “an Assembly or Council member, other than the officer presiding at a joint sitting, may not speak at the sitting – unless invited to do so by the presiding officer; or without having obtained the permission of the Speaker.”

Even Malema’s crafty little argument about “treating Members as individuals” is wrong. Rule 14F provides that, “The presiding officer, after having called attention to the conduct of a member who persists in irrelevance or repetition of arguments, may direct the member to discontinue his or her speech.”

Mbete and Modise were correct about their powers as Chairs to call the security forces into the House Chamber to remove MPs. Section 11 of the Privileges Act provides: “A person who creates or takes part in any disturbance in the … House … may be arrested and removed from the precincts, on the order of the Speaker.”

Professor Pierre de Vos, among others, has questioned the Constitutionality of section 11 in the light of section 58 of the Constitution. I will not address this point, save to say that the Speaker can invoke the power until the Act is repealed or set aside by a court of law.

In my view, the clamour about Parliamentary Rules is a red herring. The debate asks a relatively simple question about the black letter of Rules. Public discourse must focus rather on how ruling elites invoke rules to circumvent democratic process.

The ANC holds Parliament hostage

The edifice of Constitutional democracy is built on a simple principle: no person or institution should have unilateral command of the levers of the state. For this reason, the Constitution splits powers between three arms of state and employs various checks and balances.

Parliament passes laws; the Cabinet executes the laws; and the judiciary interprets and enforces the laws. The separation of the three arms of state guarantees responsiveness, transparency and accountability. The Executive, which is staffed by unelected officials, is not supposed pass laws. The Cabinet is accountable to Parliament, which is the only institution with elected (multiparty) officials.

The ANC crafted a shrewd fix around separation of powers: it centralised the functioning of Parliament and the Executive. The 1994 code of conduct for ANC MPs provides, “All elected members shall be under the Constitutional authority of the highest decision-making bodies of the ANC, and decisions and policies of the highest ANC organs shall take precedence over all other structures, including ANC structures in Parliament and government”.

The Code forbids MPs from “any attempt to make use of the Parliamentary structures to undermine organisational decisions and policies.”

Alex Boraine says correctly that the Code contravenes the Constitution, which provides that “when exercising its legislative authority, Parliament is bound only by the Constitution, and must act in accordance with, and within the limits of the Constitution.” Section 48 of the Constitution provides that “before members of the National Assembly begin to perform their functions in the assembly, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.”

Instead of affirming “faithfulness to the Republic and obedience to the Constitution,” MPs swear blind loyalty to the highest decision-making bodies of the ANC—the National Executive Committee (NEC) and the National Working Committee (NWC). The President chairs the NEC; the NWC reports to the ANC Executive.

The ANC has, therefore, reversed the structures that are fundamental to our Constitutional democracy and in the process ossified democratic process. The Cabinet does not account to Parliament because Members of Parliament are accountable to the Executive. It is much easier for the president to censure an MP than it is for MPs to censure the president.

According ANC veteran Ben Turok, “If the National Executive says to me “this is our policy”, even if I have not been consulted, I will support it.” (Quoted by Harald Mathisen and Elling Tjønneland.) Effectively, in South Africa, the fox guards the henhouse.

The ANC does not have a Zuma problem. The ANC has an ANC problem.

The centralisation of power and the blurring of lines between party and state did not begin with Jacob Zuma. According to author William Gumede, the centralisation began with Thabo Mbeki. Since then, the Office the president has remained the single most powerful institution in the country.

The events of at the SONA were the full panoply of presidential power. From the alleged jamming of mobile frequencies to the involvement of state security inside the Chamber, Mr Zuma flexed his presidential muscles without effort and sealed the deal with a chuckle. No rule is going to say the president was wrong. However, you and I know that our democratic process is penurious, because of his actions (or inactions).

The blunder of post-SONA analyses has been the focus on Zuma, ignoring the institutional decay. The ANC as a whole operates on what Richard Pithouse calls “elite consensus” or what Martin Plaut and Paul Holden call the “democracy of the elite”. Effectively, the ANC National Executive controls the party, the Executive (arm of state) and Parliament.

The current institutional arrangements of the ANC create a cult personality around its president. His Cabinet serves as prime disciples. The president is neither accountable to his party nor to Parliament.

To add insult to injury, it is not just government, but Parliament too is run from Luthuli House. ANC members are discouraged from debating policy or questioning the Executive. Some ANC MPs snooze in Parliament, others do not even bother to attend, because they have nothing to contribute. The National Working Committee predetermines their votes on all issues including policy. They are in Parliament only as bodies, mere seat fillers.

Andrew Feinstein, an ANC MP who dared to quiz the Executive about the R43-billion arms deal, learned the hard way. He was quickly slapped down and demoted. Tony Yengeni, then Chief Whip, declared, “Some people have the notion that public accounts committee members should act in a non-partisan way. But in our system, no ANC member has a free vote.”

Yengeni’s statement went largely unnoticed. He was effectively saying that the Standing Committee on Public Accounts (SCOPA), the most significant accountability institution in Parliament, does not exercise any judgment. ANC members in SCOPA take their instructions from the party, which also doubles as the Executive. Again, the fox guards the henhouse!

I was disconcerted by former president Thabo Mbeki’s remarks (audio) about the SONA events. He said South Africa was experiencing “a political problem”. He then appealed to those involved to put aside the rulebook and talk. Mbeki’s reductionism is symptomatic of a false idealism about the state of our nation.

The former president knows very well that South Africa is facing a Constitutional crisis. Opposition parties are frustrated because they cannot perform their duties. They cannot summon Cabinet members to Parliament because their ANC colleagues across the aisle are terrified of being censured. A polite conversation between Zuma, Malema and Maimane over tea and scones will not solve this problem.

There are three possibilities for reform. The first and most ideal option is for ANC members to revolt internally and push the party to reform its institutions. (I hear you saying, “Fat chance!”) The second but less realistic option is for voters to dilute the ANC power in Parliament significantly enough to pacify the ANC elites. The last option is for things to remain as they are, and for the country to collapse so that we may, hopefully, build afresh. DM

A longer (and slightly different) version of this column appeared on Cibane’s News24 blog.

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