The Constitution above all

2017-04-18 06:00

AS part of the dramatic about-turn that ANC officials opposed to the president’s Cabinet reshuffle made on April 5, the secretary-general of the ANC, Gwede Mantashe, said that Members of Parliament will oppose the motion of no-confidence in President Jacob Zuma.

As part of his media briefing, Mantashe said that “no army general can allow his forces to be commanded by the enemy forces”. He made it clear that “No ANC member will vote in a motion of the opposition”.

These statements were a reaction to those made by the former minister of Finance, Pravin Gordhan, who shortly after being fired by Zuma, indicated that he will vote with his conscience in a vote of no confidence. Opposition party leaders indicated that they were contacted by ANC MPs who were considering doing the same. Mantashe clearly wanted to nip all such intentions in the bud.

There are two aspects of Mantashe’s remarks that are disconcerting.

The first aspect that I find disconcerting is that Mantashe uses a war metaphor to stop ANC MPs voting according to their moral convictions.

Comparing party politics to warfare is inappropriate. There is no doubt that there is a lot of competition and verbal skirmishes between rival political parties, but this still does not make politics the same as war. Politics in a constitutional democracy is about winning the support of citizens for your political vision and policies.

The only power that is appropriate in a democratic dispensation is the power of persuasion. Political parties have the right to persuade citizens and even political opponents that their vision and policies are the best for the country. Thus, to equate politics with war, and to appeal to tactics that are only relevant in armed conflict, is inappropriate. Even if politics could be likened to war, the ANC is still wrong to call on its members to ignore their moral instincts. This was clearly illustrated in both Nazi Germany and apartheid South Africa, where people involved in cruel atrocities tried to defend their immoral conduct by claiming that they were simply obeying the orders of their military commanders.

In both cases, such a justification of unethical conduct was found wanting.

There are even ethics in war. Both in politics and war, people cannot simply switch off their moral conscience.

The second aspect that I find disconcerting is that Mantashe implies that obedience to the ANC overrides the moral conscience of its MPs.

The highest loyalty of the president of the country, and of all MPs, should be to the Constitution of South Africa. In fact, that is what both the president, his Cabinet and MPs pledged in their oath of office.

To call on ANC MPs to put their loyalty to their party before all other considerations constitutes in my mind a breach of their oath of office.

Should there be a conflict between loyalty to one’s political party and loyalty to our Constitution, the latter should always prevail.

In article 1 of the Constitution, the core values underpinning the Constitution are clearly articulated.

These values include, among others, “supremacy of the Constitution and the rule of law” and a “democratic government, to ensure accountability, responsiveness and openness”. It can be argued that the motion of no confidence will serve before Parliament because the president failed to uphold these values. After the Constitutional Court finding on Nkandla in 2016, a motion of no confidence was brought before Parliament because opposition parties were convinced that the president was in breach of his oath of office and did not respect the supremacy of the Constitution.

Although the motion of no confidence was defeated in 2016, the president’s lack of respect for the Constitution and his oath of office remains a consideration in the current motion of no confidence that will be voted on.

The way in which the president reshuffled his Cabinet also raises serious concerns about his commitment to govern the country according to the constitutional values of accountability, responsiveness, and openness.

Although he has the constitutional prerogative to compile the Cabinet as he deems fit, it does not excuse him from his duty to govern the country in a manner that is accountable, responsive and open.

Zuma kept the ANC and the country in the dark for days, which sparked uncertainty that contributed to our economy being taken to junk status.

A case can be made that he disrespects his oath of office and the Constitution. Our Constitution gives MPs the duty to remove the president when he is in breach of his oath of office or the Constitution. As MPs, they are expected to be true to their own oath of office and to protect the Constitution.

It is thus clear that ANC MPs cannot be forbidden to vote with their conscience. The issue is rather whether they will have the moral conviction and courage to do so.

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