Julius Malema may be facing a massive battle to save his political career after his expulsion from the ANC but he is not in the political wilderness just yet.
The ruling party’s national disciplinary committee (NDC) formally expelled Malema on Wednesday after deliberating over arguments offered in mitigation of sentence.
The expulsion is the latest stage in the disciplinary process which began in August last year.
Although the ruling could be construed as the end of Malema’s attempts to remain in the ruling party, the controversial youth leader is left with a number of options to save his skin.
Appeal some more
After initially being suspended from the ANC for five years in November, Malema challenged the NDC’s ruling on the grounds the charges against him were politically motivated.
The national disciplinary committee of appeals (NDCA) overruled his argument, but allowed him the opportunity to argue in mitigation of his sentence — as they did the ANC.
As the NDC returned with a fresh sentence of expulsion, Malema is once again afforded the opportunity of appealing the sentence.
He must file his appeal within 14 days of the sanction being handed down.
Ebrahim Fakir, political analyst at the Electoral Institute for the Sustainability of Democracy in Africa (EISA), said even appealing the latest judgment would not be in Malema’s best interests.
“The NDCA showed in the first appeal hearing that their tolerance and appetite for his behaviour is already marginal. It would be foolhardy for Malema to think he’s going to get a different result,” Fakir told the Mail & Guardian.
Malema remains youth league president as well a full member of the ANC until the secondary appeals process is finalised.
Next stop: NEC
If Malema’s appeal fails again, his next port of call would be the ANC’s national executive committee (NEC).
However, this would be a tall order as he would first have to convince the NEC his case is worthy enough to be heard by them.
He would then have to garner the support of over half of the ruling party’s main decision body in accordance with section 12 of the ANC constitution.
While support is evident for Malema among some of the ANC’s top brass, initial indications show he would struggle to put together sufficient numbers to have the decision returned to the NDC.
Nonetheless, there has been a precedent of sorts set in this regard.
In 2006, former ANC chief whip Mbulelo Goniwe was found guilty by the ANC’s NDC on a charge of bringing the party into disrepute after attempting to use his political office to obtain sexual favours.
Goniwe successfully brought the matter before the NEC, who then overturned the ruling issued by then NDC chair Kader Asmal.
But it didn’t all go Goniwe’s way, as the NEC ruled the process had to start afresh and he was found guilty again and sentenced to a three-year suspended suspension.
Additionally, getting the matter on the NEC meeting’s agenda will be a challenge.
It involves applying to ANC secretary general Gwede Mantashe, who determines the programme.
This does not bode well for Malema as he has often called for Mantashe to be replaced at the next ANC elective conference by former league president Fikile Mbalula.
“There is no guarantee the NEC would be sympathetic to him. If they even decide to hear him, the best they can do is return it to the NDC and Malema should realise by now the NDC won’t rule in his favour,” said Eusebius McKaiser, political and social analyst at the Wits Centre for Ethics.
Delay until Mangaug
Alternatively, Malema could attempt to have his sentence quashed at the ANC’s next elective conference in Mangaung in December.
This would involve tabling a motion to nullify all disciplinary charges against him to voting delegates at the conference.
As per section 11.3 of the ruling party’s constitution, the conference is granted the power to “review, ratify, alter or rescind” any decision taken by the ANC or its constituent bodies.
But Malema must first assure he attends Mangaung by delaying the process surrounding the appeal of his expulsion. Should that process already be concluded, it would be up to other ANC members to take up the cause.
His former comrades would also be hesitant to throw their hat in with a persona non grata.
“He would need sympathy from a very influential person on the ANC NEC to pull this one off. That person would have to take up his cause and based on the current mood within the party, I don’t see anyone being foolish enough to do so. By supporting Malema they are putting their political careers in danger,” Fakir said.
Should these recognised avenues to challenge the expulsion fail, Malema could count on the youth league sticking with their decision to disregard the NDC’s ruling completely.
On several occasions, the league has said it would defy any sanction handed down to Malema as the ANC must “inform and convince” league members of the decision to institute disciplinary action.
It would be dangerous territory for the youth league as the ANC’s “top six” leaders — including President Jacob Zuma and Mantashe — have the power to dissolve the youth body, and call a fresh elective conference.
Moreover, Fakir said the ANC would not accept the youth league defying an NDC order.
“The league would be shooting themselves in the foot if they went this route. The ANC would look bad both nationally and internationally and would thus send a message that such a move is unacceptable,” Fakir said.
This was echoed by McKaiser who said the youth league would embarrass themselves by defying any NDC ruling.
“Malema would have no right whatsoever to be an active ANC member, talk on party platforms or even come near Luthuli House. The ANC would then be forced to use security or a court interdict to remove him from the premises if he showed up after his expulsion is finalised,” McKaiser said.
In desperation, Malema could elect to take the matter to court as an absolute last resort.
Although he has previously said this will never happen, Malema could use alleged violations of the process in which his expulsion order was handed down.
Before the NDC announced their final decision, Malema’s legal representative Dali Mpofu confirmed to the M&G that a formal complaint based on lack of notice was issued to the ANC.
But it could be an extremely risky strategy as anyone who has taken the ANC to court has never survived politically.
“At the best it would be a Pyrrhic victory as the ANC have a history of alienating those who drag political matters into the legal domain. Aside from that, the NDC was so thorough, Malema would struggle to find a legal basis to challenge the findings,” McKaiser said.
For more news and multimedia on ANC Youth League president Julius Malema click here.
In a previous version of the story, we said Eusebius McKaiser is a political analyst at the Centre for the Study of Democracy. He is, in fact, a political analyst at the Wits Centre for Ethics.