Mpumelelo Mkhabela

Secret ballot: Mantashe's decree is unlawful

2017-08-04 08:00
ANC secretary general Gwede Mantashe. (Deon Raath, Gallo Images, City Press, file)

ANC secretary general Gwede Mantashe. (Deon Raath, Gallo Images, City Press, file)

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The political phenomenon of “mantashe-ing”, which means changing your views regularly for convenience at the expense of rationality, has taken a new meaning. 

The verb to “mantash” entered the lexicon as a fitting recognition of the extraordinary chameleonic skill of Gwede Mantashe, the secretary general of the governing ANC.

“Mantashe-ing” expanded its dictionary meaning when Mantashe this week provided a complete distortion of South Africa’s constitutional democratic system. 

Mantashe, standing on an elevated platform at Luthuli House, supposedly higher than God’s sacred Kingdom, decreed that the human beings made in God’s image have no conscience to speak of. 

He was insulting ANC members of Parliament whose conscience dictates to them they need to kick Jacob Zuma, the highly compromised and divisive president, out of office on August 8. 

“I don’t know where this notion comes from that we are a collection of individuals who have conscience,” Mantashe said in defence of Zuma. “We are members of the ANC in a party-political system.”

He is entitled to speak for himself if he lacks conscience. But he shouldn’t speak for elected public representatives who as individuals publicly swore allegiance to the Constitution of the Republic.

Mantashe’s conscience – or lack of it – aside, the constitutional crisis South Africa is facing is partly as a result of the manufactured tension between the political party system and the Constitution. 

The Constitution in simple language provides for the political rights of all South Africans. The right to form and belong to a political party, to vote, to stand for public office, to articulate political views, to campaign and so on. In other words, political parties derive their existence from the Constitution itself.

The Constitution also requires elected public representatives to take an oath of office in full view of the public declaring their allegiance to the supreme law of the land and to the Republic. They swear to perform their public duties to the best of their abilities.

Their public duties include electing and dismissing a president. Next week, they will debate and vote on whether Zuma, in their view, should be dismissed from office. It shouldn’t be about whether they like Zuma’s giggles or not. It should be about what’s good for the country.

Mantashe and other ANC leaders who want to enforce party loyalty above anything else are creating unnecessary tension between political party and the supreme law of the land. 

The supremacy of the Republic’s Constitution (upper case “c”) over political party constitution (lower case “c”) has been confirmed by the Constitutional Court. 

In the secret ballot judgement, the court said nowhere was it stated in the Constitution that MPs owed allegiance to their parties in their exercise of public duties. It went on to say that where there appeared to be tension between party loyalty and allegiance to the country, the latter should prevail. 

The secret ballot judgement was not the first to clarify the relationship between political parties and the Constitution. In the Ramakatsa and Others vs Magashule and Others in 2012, the court made several definitive pronouncements about the relationship between political parties and the Constitution. 

Writing for the majority, Deputy Chief Justice Dikgang Moseneke and Justice Chris Jafta made profound pronouncements which must be contrasted with Mantashe’s remarks.

First, constitutions and rules of political parties must be consistent with the Constitution which is our supreme law. (Mantashe’s elevation of party above the Constitution is unconstitutional.)

Second, section 19(1) proclaims that every citizen of the country is free to make political choices which include the right to participate in the activities of a political party. (Mantashe is wrong to make it as if the ANC as an organisation has higher rights above those of its members who constitute it.)

Third, the right to participate in the activities of the political party is protected against not only external interference but also interference arising from within the party. (Mantashe’s conduct may constitute a threat against the exercise of political rights of MPs arising from within the party.)

Fourth, political rights can only be limited by law of general application. But even so, such a limitation must be reasonable and justifiable in an open, democratic political system based on human dignity, equality and freedom. (The conduct of Mantashe and others who have threatened ANC MPs is an attempt to unlawfully introduce limitations to the exercise of political rights.)

Fifth, political parties may not adopt constitutions which are inconsistent with section 19. If they do, their constitutions may be susceptible to a challenge of constitutional validity. (Any action against MPs who exercise their political rights in line with the Constitution can be set aside and the rule used to act against such MPs can be declared invalid.)

Sixth, in regulating their internal affairs, political parties must facilitate the exercise of political rights entrenched in section 19 of the Constitution. (In addition to the guidelines the Constitutional Court gave National Assembly Speaker Baleka Mbete to decide on whether or not to adopt a secret ballot, this pronouncement by the court is also instructive. Even if she wishes to toe the party line, the party line itself is not immune to judicial review.)

Seventh, Justice Zak Yacoob, who dealt with a separate aspect of the majority judgement in Ramakatsa, remarked: “I do not think that the Constitution could have contemplated political parties could act unlawfully.” (The threats of disciplinary action against ANC MPs who insist on voting with their consciences constitute unlawful conduct by the ANC.)

- Mpumelelo Mkhabela is a fellow at the Centre for the Study of Governance Innovation (GovInn) at the University of Pretoria. 

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24. 



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Read more on:    constitution  |  no confidence vote  |  secret ballot
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