Attacks by senior ANC figures, from President Jacob Zuma downwards, on what they style as the excessive intrusion of the judiciary into the executive sphere are increasingly common and disturbing.
So it is no small irony that the party has chosen to dress its internal political wrangling in the legitimising robes of a mock trial, and to set out the results in language clearly designed to echo the deliberations of a judge.
Derek Hanekom was in pinstripes and an open collar as he read out a summary of the party’s national disciplinary committee (NDC) findings on the conduct of Julius Malema and other ANC Youth League leaders in an airless corner of Luthuli House last week. The “tjatjarag” pinging of his iPad may have slightly undermined his gravitas, but there was no mistaking that this was a performance drawing heavily for its structure and logic on the work of the courts.
At the heart of it all was what we might call a constitutional law proposition. “The fact that the youth league has chosen, in its constitution, to be a legal persona that would enable it to hold and alienate property and enter into agreements does not make it independent of the ANC,” Hanekom declared.
“These powers, in the view of the NDC, speak to a degree of organisational independence. This organisational independence is, in turn, circumscribed by rule 7.4 of the ANC constitution, which provides that the youth league constitution shall not be in conflict with the ANC constitution and policies of the ANC —
“In summary, if the youth league seeks to operate outside of the ANC constitution and policy, it will, in the NDC’s view, be acting outside the constitutional doctrine of legality of the ANC constitution and existing ANC policy. In other words, the ANC youth league would be operating unlawfully.”
ANC common law figured too, in the form of resolutions at last September’s national general council (NGC). Explained Hanekom: “The current disciplinary proceedings are the first proceedings before the NDC following the NGC, and it is incumbent upon the NDC to observe the injunction of the NGC.
“Argument was presented to the NDC by those charged that there must be consistency in dealing with matters of discipline, and the NDC concurs with this —”
The next step
And there were essays in the criminal law process of weighing aggravating or mitigating circumstances against the verdict.
Next up, of course, is the appeal process, similarly festooned with legalisms. ANC judges, of course, are not to be accused of harbouring political motives, as the party insisted in a statement on Wednesday.
“The outcome and the entire NDC process was never meant to settle scores — this was proven by the charges that all the affected members were charged on,” the statement said. “Any insinuation that the charges brought against Malema and other league leaders, as well as the outcomes thereof, were ‘political’ is, therefore, without any substance.”
That may cause a few pained laughs at the Constitutional Court, where memories of the siege laid by supporters of President Jacob Zuma over cases linked to his fraud and corruption trial are painfully fresh in the memory. Of course, South Africans are used to the displacement of what might elsewhere be purely political disputes into the legal domain. It is a consequence, among other things, of the broad electoral hegemony of our governing party, and our pure proportional representation, party list system. The courts, as Geoff Budlender argued persuasively in his Bram Fischer Memorial Lecture this week, add a critical dimension of accountability to this structure.
But when the reverse takes place, and a metaphor of legal process is overlaid on a political process, something more than ironic juxtaposition is taking place.
The fact is that strident criticism from Zuma, ANC secretary general Gwede Mantashe and deputy minister of correctional services Ngoako Ramatlhodi has not yet eroded South African’s basic faith in an independent judiciary, and that is why they feel able to rely on the courts as a legitimising metaphor by which to structure their decision to eject the inconvenient youth and his fellow travellers.
There is something else going on, too, beyond the expedient moment: a desperate and no doubt necessary bid to restore some kind of centre of institutional authority within the party. The basic restraints governing the way the ANC conducts leadership contests were gradually, and painfully, smashed on the road to Polokwane, and the final barrier fell with the “recall” of then-president Thabo Mbeki.
Even as the glow that followed Zuma’s election faded the party leadership stood dazed amid the wreckage as the youth league and the turbulent factional barons of the national executive committee acted without the constraints of tradition, strong central leadership or shared rules.
The disciplinary process is not just a structured bid to get rid of Malema. It is designed to repair a broken institutional culture and to situate it not in the hands of an individual — Zuma — or even a party structure but in the common text of party legal precedent. Of course, as Walter Benjamin explained better than most, no law has a priori legitimacy, it is put in place by a founding act of violence. Whether Zuma and his supporters are capable of erecting a new and sustainable edifice in the space they have cleared is very much open to question.
Malema almost certainly lacks the popular support and the base within the national executive committee to overturn it, but it won’t be long before the party finds other reasons to turn upon its own judges.
The ANC has long since given up the law for the pure play of power, and no amount of theatre will set that right.
For more news and multimedia on ANC Youth League president Julius Malema view our special report.
