The ANC is in a conundrum, not just in respect of the so-called step aside policy but generally in terms of ensuring adherence to its constitution.
On the face of it, the issue appears to be a failure to implement its resolution in 2017 that those facing serious charges should step aside, but the matter goes far beyond that and has a history.
The fact is that there was never and there is not any interpretative issue with the resolution which is crystal clear. Not even those who have an issue with its implementation question the validity or otherwise of this national elective conference resolution.
There are two key issues about the implementation of this resolution and generally the ANC constitution. The first involves what can be characterised as persistent allegations of abuse of power in the implementation of the resolution.
The second is what can be characterised as an erosion of discipline within the ANC.
The allegations of abuse of power go way back and are historical. Divisions within the ANC have inevitably led to serious mistrust and charges of lack of fairness and objectivity. For many years, the ANC has battled with this issue with no end in sight.
Equally, the issue of discipline has become a perennial problem. Over many years it has become normal for members to engage in conduct and actions which clearly undermine the ethos, values and discipline of the governing party with impunity.
There is very little evidence, save for a handful of members, who have been disciplined. It gets even more complicated when senior leaders are implicated in corruption and resist being disciplined on the basis that they are being victimised.
There have been calls in certain quarters who hold a view that a different approach should be adopted to resolve the root causes of the problems. The difficulty is that this requires hegemony of thought if such an approach were to be adopted.
That hegemony of thought is far from realisation owing to the nature and level of the mistrust and conflict within the ANC.
At the same time, certain factions of the ANC may feel that they are not prepared to reward ill-discipline and disregard of the party’s constitution and policies. Either way, the reality is that the current situation warrants an intervention one way or the other.
The fact is, unless there is a general acceptance that something must happen, it may not be possible to implement the terms of the constitution and policies. This in turn leaves the ANC more vulnerable and unable to achieve its end-goal of having society see it as a leader.
One of the fears expressed in the “step aside” resolution is the fear of the loss of public trust and state power. The ANC is therefore required to strike a fair balance between its own and public interests. The loss of public trust and support will inevitably lead to the demise of the ANC, which is the very social ill the resolution seeks to prevent and address.
The ANC constitution requires that members conduct themselves in a particular way and that there be consequences for wayward behaviour. This was fortified by the 54th conference resolution which defined what should happen to members who, are among others, implicated in corruption and malfeasance.
While the ANC seems to try, the reality is that it is becoming almost impossible to implement the terms of the constitution and the resolution. The attempt to implement these measures implicate a number of legal principles.
Among others, is the innocent until proven guilty and fairness and equality before the law.
While the resolution is not intended to replace the normal law enforcement activities of the relevant state organs, the fact that one of the jurisdictional factors is the fact that a person is charged and has appeared in court lends itself to the invocation and possibly distortion of how and where the principle applies.
It also fortifies the suggestions and innuendo that state organs are being abused. The allegations of abuse of state organs dates back many years and has never been tested but continues to be used as bait.
Unless and until these allegations are discredited through a proper process, they will continue to be used successfully at least within the ANC.
It was the same set of allegations which have bedeviled two former ANC presidents resulting in their terms of office ending prematurely.
One of the immediate dangers the ANC faces is that certain parts of its constitution and resolutions may end up falling within the legal doctrine of abrogation by disuse.
As far back as 2008 and around the time that discipline within the ANC became notoriously absent, following the Polokwane conference, the Supreme Court of Appeal has this to say about this doctrine: “The doctrine that law may be abrogated by disuse is well established in our law. The basis of the doctrine is the tacit repeal ‘through disuse by silent consent of the whole community.”
The longer it takes for the ANC in giving practical effect and dealing with factors adversely impacting on its ability to implement its constitution and resolutions, the more these are being abrogated by disuse.
There is an obvious reality that the ANC must confront. Whether rightly or wrongly, there is at least a strong perception among a category of members that the constitution and the resolution is not being implemented fairly and objectively or at all. This may not be the case and some may be hiding behind this perception to escape censure.
However, it is equally dangerous to be dismissive of those who express these concerns. Among the many challenges presented by the erosion of trust is the lack of credibility of any process in the implementation. The principle that justice must not only be done but must also be seen to be done is critical to the credibility of the processes of the ANC.
Those who are implicated and qualify for action to be taken against then in terms of the constitution and the resolutions have rights vested in law.
While they may not avoid censure purely on the basis of unfair treatment, they have every right to resist if indeed there is unfair treatment.
It is incumbent on the ANC to ensure that it addresses all allegations of unfair treatment to meet the minimum equality threshold.
The principle of equality before the law entails that all allegations must be dealt with in the same way, with the proviso that every case must be dealt with on its own merits and surrounding circumstances.
With a history of impunity for ill-discipline, the moral and ethical framework of the ANC has been disrupted. The ANC needs more than legal instruments such as the constitution and the resolution to address the current challenges.
While in law the ANC has every power to act, it needs the full cooperation of members to achieve its end goal. The essence of voluntarily stepping down is premised on moral and ethical considerations.
However, in the absence of a culture of discipline, moral and ethical conduct, to expect even a morally upright and ethical member to cooperate may be asking too much.
The public exchanges, allegations and counter-allegations suggest that the ANC has to start somewhere before it implements its constitution and resolution.
Already the body tasked with making determinations, the integrity commission, is facing accusations of bias and being used. If even the integrity commission is facing such charges, the credibility of the entire process is put in jeopardy and question.
In the face of the many accusations, counter-accusations and a clear resistance from certain quarters within the ANC which is playing itself out in public, what guarantees does society have that the processes and decisions are fair and objective?
The public perception at the least is that the ANC national executive committee (NEC) is divided and fractured. It is the very members of the NEC who must decide on the fate of those implicated.
There is no doubt that those implicated in malfeasance must be dealt with decisively, but the processes must equally be credible.
If the message out there is that there is an agenda of purging members, which has not been refuted or at least fully investigated, it is possible that those implicated may gain the sympathy not only of their supporters within the ANC but in society as well.
Those implicated may also rightly call for the recusal of those they deem opponents in both the NEC and the integrity commission. This may easily lead to everyone recusing themselves and no decisions being taken.
The end result will be that the purpose of the resolution will be defeated and those implicated not held accountable.
The ANC must guard against its own processes being undermined by it failing to address some of the root causes which affect its ability to implement its constitution and the resolutions.
Mannya is an advocate, writer and executive director of legal services at Unisa