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Ignore the Constitution at your peril

In The Wretched of the Earth, Franz Fanon, whose work has recently been thrust into the centre of South African political discourse, warned of the “organic party … being transformed into the syndication of individual interests” and further that “the nation should not be an affair run by a big boss”.

Though Fanon developed a range of political strategies to deal with this problem in post-colonial societies, South Africa chose its own route in 1994, namely a particular form of constitutional democracy. The aim of this model was, in significant part, to ensure the promotion of accountable governance and thus to prevent the government acting primarily on behalf of a syndicate or of the “big boss”.

When the Constitutional Court handed down the judgment on the secret ballot for the no-confidence vote in the president, it clearly had these dangers in mind when it set out the role of members of the National Assembly.

In his judgment, Chief Justice Mogoeng Mogoeng referred to the role of Parliament in ensuringthat the executive is held accountable to its legal obligations: “In certain cases it may be that the executive has strayed significantly off the path of responsible governance … That would be when the president and his or her team have, in the eyes of the elected representatives of the people to whom they are constitutionally obliged to account, disturbingly failed to fulfil their obligations.

“In other words, that stage would be reached where their apparent underperformance or disregard for their constitutional obligations is viewed, by elected public representatives, as so concerning that serious or terminal consequences are thought to be most appropriate. And that takes the form of removal from office.”

This passage highlights the importance of the doctrine of separation of powers — not, in this instance, involving the judiciary, but between the executive and the legislature.

The point is that the legislature is constitutionally obliged to ensure that the executive performs constitutionally. MPs obviously gain access to the National Assembly by virtue of membership of a political party that garners sufficient votes in an election, but their role as MPs is not to pay obeisance to the big boss but rather to their constitutional obligations enshrined in the doctrine of separation of powers.

It was precisely to make this crystal clear that the chief justice went on to say: “Members are required to swear or affirm faithfulness to the republic and obedience to the Constitution and laws. Nowhere does the supreme law provide for them to swear allegiance to their political parties, important players though they are in our constitutional scheme.

“Meaning, in the event of conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail. This is so not only because they were elected through their parties to represent the people, but also to enable the people to govern through them, in terms of the Constitution.”

This is as clear a statement that the Constitution and not the mind or wishes of the big boss is the road map for MPs when faced with a motion of no confidence in the president. Some politicians, to their credit, have recognised this distinction. Speaker Baleka Mbete also made this clear when she announced her decision to conduct the voting by secret ballot.

But other voices in the ruling party have demanded retribution against those members of the party who defied instructions and voted for a motion of no confidence proposed by the opposition parties.

Although a political party can demand loyalty to its policy, it is clear from the chief justice’s explication of the role of Parliament in terms of the doctrine of separation of powers and the consequent role of MPs in holding the executive accountable to the Constitution in particular and the law in general that an MP is obliged to uphold these principles.

It thus follows that an investigation into the identities of MPs who defied the party line in respect of a motion of no confidence or, even if known, seeking the removal of an MP cannot be reconciled with the ruling of the Constitutional Court.

But the reactions of some to the manner in which votes were cast in the secret ballot hold even more serious implications. This country cannot have a big boss theory of politics and maintain a constitutional democracy in even the medium term. Unless it is accepted that the Constitution provides us with the normative framework to judge all forms of governance, and that this framework is not subservient to the particular views of any political party or its leaders, constitutional demo-cracy cannot exist for any length of time.

Not even a judiciary as principled and steadfast as South Africa’s is capable of preserving the model if society prefers the big boss. Sadly, as Fanon warns, the latter form of governance invariably leads to government promotion of a syndicated racket. Just look at the effect of Donald Trump in the United States if you need proof.

 

M&G Slow

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