Politicians have breathtaking latitude when it comes to campaign communications. Outrageous promises and sometimes blatant falsehoods are the norm.
Given the nature and purpose of campaigning, there is no immediate problem with this. But what happens when that latitude is abused beyond the ambit of campaigns and is instead used by members of Parliament as a tool to protect their own interests and reputations at the expense of constitutional demands? Can that abuse ever be legally constrained?
Five months ago, Julius Malema appeared on the Eusebius McKaiser show on 702 Talk Radio. After expressing distaste for “disingenuous people”, he made the following promise:
“Any journalist who wants to go through the EFF’s books is more than welcome. Make arrangements with Leigh-Anne. Leigh-Anne will open the books… We want you to satisfy yourselves.”
Having essentially proclaimed himself a practitioner of all things genuine, one would have thought this promise would have been fulfilled by now. Not so.
Instead, every request made by investigative journalists to date has been rejected. It seems Malema’s quest for genuineness has been sacrificed to his interest in safeguarding his reputation and that of the EFF following – among others – the VBS scandal.
The promise to open EFF books to scrutiny appears to have met a similar fate. Unless Malema’s promise went too far this time – far enough to potentially attract a legal obligation of performance, which could see Malema compelled to subject the EFF’s books to journalists’ scrutiny, as promised.
This may be the case, but the question of enforcing compliance with political promises is not easy.
For various sound reasons, courts will not hold politicians to political promises made during election campaigns. Politicians are aware of the latitude they have in this regard, and they exploit it thoroughly.
However, outside of political campaigns, the position is less clear. Accordingly, when campaigning concludes, politicians largely steer clear of making specific promises to specific people. On the odd occasion, they feel compelled to make promises, those “promises” are either extremely vague or conditional on someone else or some or other highly improbable event. This is clever because vague promises cannot be enforced. Neither are conditional promises liable to enforcement in circumstances where the condition remains unfulfilled.
Politicians’ promises will almost certainly escape the reach of the courts where these boundaries are observed. Again, there is no problem with this because these kinds of “promises” usually concern policy issues of one variety or another, and aid in stimulating political and public debate.
But Malema’s promise was different.
First, it was not a campaign promise. Second, it was a promise made to a very specific group of individuals – journalists. Third, it was clear, unambiguous, and unconditional, even going as far as setting out the process that a journalist would have to follow in order to obtain access to the books. Can a promise like this be enforced?
Our courts, at common law, can enforce a promise that is seriously made provided that the promise was intended to attract a legal obligation. Of course, Malema would likely argue that, if anything, he intended the promise to attract a moral or political consequence, not a legal obligation. On the doctrine as it currently stands, Malema would probably wriggle out of any potential legal consequences – but that is hardly the end of the matter.
Malema is no ordinary citizen. Not only is he Commander-in-Chief of the EFF but, more importantly, he is an MP. As such, he is part of the parliamentary machinery whose function it is to police the executive branch of government.
We have been told by the Constitutional Court that Parliament can only perform this function effectively when its MPs “are unwaveringly loyal to the core constitutional values of accountability, responsiveness and openness”. MPs must not only be “unwaveringly loyal to the core constitutional values” but they must be seen to be so. There is a good reason for this.
Left legally unchecked, the tendency for MPs to (ab)use their platforms to make false promises in their own self-interest may spiral. This is especially so in a country where corruption and abuse of power is being laid bare on a daily basis. Exposure to increasing, self-interested, empty promises by MPs over a period of five years in between elections may well have the nett effect of beginning to undermine the public’s confidence not just in a specific party but in Parliament as a whole: how can we trust Parliament to hold the executive to account when Parliament itself increasingly seems to consist of MPs whose self-interest appears to trump their commitment to the Constitution and its values?
It is against this background that we are therefore, arguably, justified in anticipating that promises of this nature attract a legal expectation of fulfilment.
Our common law can be developed to bring it into line with Constitutional demands. For the reasons above, it is arguable that the test for enforceability of promises should be developed. Promises like Malema’s should be deemed to attract legal obligations by virtue of the constitutional responsibilities that rest upon his shoulders.
Our investigative journalists might do well to take up causes like this and test the law. No matter the outcome, no democracy has ever been harmed by fighting for greater transparency from elected leaders. DM