Who governs in South Africa, and by what rules?
Is it a political party, the ANC? Or is it the government that was elected by the citizens of South Africa?
In normal times this is not an issue in parliamentary systems like ours. The undisputed leader of the majority party is president (or prime minister) of the country, exercising the powers and responsibilities set out in the Constitution.
But these are not normal times, and the profound split that has emerged between party and government poses the question in stark terms. Are fundamental decisions to be made in Parliament and the Union Buildings, or in Luthuli House? Who is the effective head of government — the president of the ANC, Jacob Zuma, or the President of the Republic, Thabo Mbeki?
The ANC sees government leaders, including the president, as ”deployed” by the party and responsible to its leadership. The government, therefore, should follow party policy and be composed of leaders assigned by the party. The ANC constitution is clear: ”A member of the ANC shall … defend the policies, aims and programme of the ANC.” Party democracy.
On the other hand, there is electoral democracy, in which the president and cabinet are accountable to Parliament, the members of which are in turn responsible to the electorate. In the logic of the Constitution, leaders are responsible not to a party, but to the citizens — a far larger and broader constituency than the paid-up membership of the ANC, and the even smaller number who were delegates at Polokwane.
It is almost as if the country has two constitutions.
The Constitution of the Republic does not require us to pretend that parties do not exist or that politicians are not elected on a party platform. But a system of responsible government, as we have chosen, requires accountability to the legislature.
For this kind of accountability to work, decisions should be made by elected politicians who are subject to oversight, scrutiny and public questioning, not merely residents of Luthuli House, which has no such requirements. If governments act on instruction they cannot fulfil their constitutional role. Nor can the system work when party officials decide on policies that they are neither responsible for implementing nor for living with the consequences thereof.
Usually, in parliamentary systems, the tension between party and government is not a problem: the two are clearly aligned, rooted in government’s mandate from the parliamentary majority. When the leader loses the confidence of the party, she or he will normally resign and a campaign for a new party leader will follow. If the new leader cannot command parliamentary support, an election will be called.
There is no formal reason why South Africa should not follow this course. The stipulation in the Constitution that a president may serve two full five-year terms leads many South Africans to think that a president is entitled to complete his or her second term, as in the US system. The Constitution says that a president who loses the confidence of Parliament must resign. It is silent on what must happen if a president loses the confidence of his or her party. But a president who is no longer in a position to set policy might be expected to relinquish power because he or she can no longer fulfil constitutional obligations.
How to proceed in the current stand-off? There are several alternatives.
President Mbeki could resign voluntarily, paving the way for a new president to complete his term. This would avoid a conflict between the party and national constitutions. It would also be the practice followed in most parliamentary systems.
Or he could be forced out. That could be achieved by a vote of no confidence in the National Assembly. Such a vote would require a major shift of loyalties of ANC MPs from the current president, on whom their parliamentary careers have heavily depended, to the new party leadership, which may well hold their future in its hands. This could easily lead to serious and destabilising internal divisions, which would be harmful to both party and country.
Dismissal could also be attempted by a vote of the extra-parliamentary ANC members demanding the president’s resignation. This could precipitate the ”who governs” debate in all its complexity. The party would claim authority through its constitution; Mbeki could say, ”No, I am elected by the people through their parliamentary representatives, and I will complete my term.”
A second scenario is for the ANC to allow Thabo Mbeki to serve out his term of office, leaving his Cabinet membership and major policies intact. This may well facilitate stability, but is unlikely to be acceptable to the forces that came together to unseat Mbeki.
There is a third option — compromise. South Africans — and the ANC itself — have already demonstrated their skill at this difficult task. If suspicions and distrust can be set aside and cooler heads prevail, then the best outcome might be agreement that Mbeki serves his term and policy is negotiated, perhaps including a Cabinet reshuffle. This would preserve continuity while adapting to changed circumstances, avoiding a dangerous showdown between party democracy and national democracy.
The current atmosphere of hostility and distrust — even if the substantive differences are not that large — suggests that compromise will not be easy to bring about.
Christina Murray is professor of constitutional and human rights law at the University of Cape Town and Richard Simeon is professor of political science and law at the University of Toronto