Siyabonga Hadebe | Saturday, 8. June 2024
The election on 29 May 2004 marked a pivotal moment as the ANC dipped below the 50% threshold for the first time since 1994. This outcome signalled a shift in the political landscape, necessitating the ANC to seek coalition partners for governance.
Currently, debates are rife over the preferable coalition scenario: a market-preferred alliance between the DA and ANC or the contentious prospect of a “doomsday coalition” involving the EFF and the newly formed MK. Termed the “coalition conundrum”, this dilemma underscores the complexities facing the ANC, particularly compounded by MK’s adamant stance to negotiate only if Cyril Ramaphosa is dismissed by the ruling party.
Amidst the political tension, MK will continue to dominate news headlines for a considerable time. In addition to its refusal to negotiate with the ANC, MK might challenge the judicial system’s resolve by disrupting NA’s opening this month. Despite the IEC’s declaration of the election results as “free and fair,” MK and other dissatisfied political factions have contested the outcome. Nevertheless, MK has submitted its list of representatives slated to join the country’s seventh parliament.
Notwithstanding the ongoing coalition talks, attention will quickly shift to the installation of the National Assembly. The Constitution stipulates that the NA’s first sitting must take place within 14 days after the election results are declared, during which the NA elects a new President, Speaker and Deputy Speaker. “The President of the Republic is the last to be elected by the House because the Assembly must be duly CONSTITUTED first to exercise its power to elect the President.”
On June 6, Chief Justice Zondo announced the publication of regulations governing the inaugural sessions of the NA and provincial legislatures. Additionally, judges presidents from various divisions were appointed to oversee the initial sittings of the provincial legislatures, ensuring procedural integrity.
Many analysts already predict that MK will allow its representatives to be sworn in as National Assembly (NA) members, who will then be expected to elect the President. But the story does end there. If the ANC fields Ramaphosa as its candidate, for example, MK will possibly, in the words of constitutional expert Pierre de Vos, “sabotage” the president’s election by refusing to participate in the process. Now, the country’s legal system is likely to be tested.
This article delves into the dialogue between legal expert Pierre de Vos and economist Chris Malekane regarding the potential ramifications of scenarios such as the MK party opting to boycott the presidential election. It anticipates that the constitutional protocols and public interest could face significant challenges, particularly in their interpretation and application, possibly leading to judicial intervention. Looking at how the law has been breached, creating the so-called ‘Zuma law’, the judiciary will possibly bend the rules to allow the installation of a new president even if the numbers do not tally.
De Vos asserts no party can “sabotage” the president’s election
In his Constitutionally Speaking blog, De Vos asserts that a political party cannot undermine the election of a president by refusing to participate in the National Assembly’s election process, as the number of votes needed for a majority would simply adjust to the number of votes cast. According to Schedule 3 of the Constitution, a candidate must secure an “absolute majority” of votes cast to be elected. This majority is based on the total votes cast, not the total number of seats in the NA.
Furthermore, De Vos states that a political party’s boycott or abstention could reduce the votes required for an absolute majority. For instance, if 180 MPs vote for one candidate and 170 for another, with 50 abstaining, the candidate with 180 votes would win. The Constitution mandates that the election occur at the NA’s first sitting after the election results are declared, with a failure to do so within 30 days possibly leading to the dissolution of the NA.
Also, s53 specifies that only one-third of NA members must be present to vote. Despite s46 defining the NA’s size, its relevance to the quorum required for decisions is debated. De Vos emphasises the pivotal role of the President in forming the government and appointing the Cabinet, subject to political constraints, especially when the President’s party lacks a majority in the NA.
In advancing his argument, De Vos argues that despite the ANC holding only 159 of 400 seats and the DA’s 87 MPs unlikely to back a candidate from the EFF or MK, three scenarios may unfold. First, without a coalition agreement, the ANC candidate could win if the DA abstains, leading to a minority government reliant on the DA and others to avoid a no-confidence vote. Second, a confidence-and-supply agreement could stabilise the ANC’s minority government by ensuring support for key legislation without forming a coalition. Third, a comprehensive coalition agreement could offer co-governance, requiring consensus on cabinet positions, policies and committee roles.
If no coalition is formed, each committee chair election could cause instability. The rules of the National Assembly might need revision to address the lack of a majority party. Additionally, coalition partners would need input on presidential appointments and a mechanism for policy disagreements. Should Ramaphosa be re-elected, his second term would start immediately, limiting his eligibility for re-election if removed by a no-confidence vote.
Can MK’s absence really scupper the president’s election?
Speaking to EWN’s Tshidi Madia, Jacob Zuma was asked what would happen if the 58 MK parliamentarians decided not to be present during the president’s election. Unlike De Vos, he believes that if there is no quorum in the NA, there will be no election. For him, a significant number of “empty chairs” (without stating the number) would be sufficient to scupper the vote. If this is indeed the case, the ANC will neither achieve a minority government, a market-led coalition nor a unity government if a standoff with MK persists.
Malekane appears to share Zuma’s perspective that MK can be a party pooper and spoil the fun. He offers a different perspective on De Vos’s claim that a political party cannot disrupt the presidential election by abstaining from participating in the NA. Malekane argues that s46(1) is not solely about the size but also concerns the “composition” and “legitimacy” of the NA. On the composition, he explains that the NA must consist of a balanced representation of men and women, with a mandated range of 350 to 400 members. He opposes the view that any number can elect the president.
Malekane also highlights the critical role of legitimacy, asserting that if a significant number of elected representatives dispute the electoral process, the NA’s legitimacy is compromised. Moreover, he underscores the need for a consensus among political parties to validate the election’s fairness, underscoring the IEC’s obligation to ensure broad concurrence. He also clarifies that s46(2) mandates Parliament to determine the precise number of NA members within the bounds set by s46(1).
Politicisation of the law in South Africa
As the NA presidential election looms closer, there is a growing concern about potential judicial overreach, which might manipulate the rules to achieve predetermined political ends. Rather than helping parliament interpret the rules accurately, there is concern that the judiciary might distort them, potentially disadvantaging parties like MK and favouring those advocating for a unity government. The judiciary’s history of contravening constitutional provisions to establish what some term as ‘Zuma law’. This denotes a precedent where judicial decisions have been seen as biased or politically motivated, adding to the concerns about potential unfairness in the upcoming election.
Unfortunately, any concerns with the judiciary’s conduct or the Constitution are always met with hostility, violence and a flood of insults, sullying any possibility of a healthy debate. There are two instances in which judicial impartiality was evident, coincidentally in cases involving Zuma: the decision to make the Office of the Public Protector’s decision binding and Zuma’s incarceration without a fair trial or a possibility to appeal a sentence.
Firstly, initially established as an ombud’s office, the Constitutional Court controversially gave the Office of the Public Protector ‘teeth of steel’ by declaring its findings binding, notably in the Nkandla matter involving Zuma while he was still president. The court’s decision was tailored to circumvent the lengthy legal proceedings that could have ensured fairness and protection of the rights of the accused. Zuma’s punishment for the Nkandla upgrades did not meet the rules of fairness, as his punishment was determined without a trial.
Secondly, legal experts Christopher Fisher and Divashnee Naidoo argue that the Constitutional Court erred in sentencing Zuma to 15 months’ imprisonment for contempt of court without ensuring his fair trial rights under Section 35(3) of the Constitution. They assert that Zuma should have been afforded fair trial rights, including the right of appeal to a higher court, given the nature of the relief sought against him. Additionally, Fisher and Naidoo argue that the case should have been directed to a High Court with appropriate jurisdiction. Despite Zuma’s attempt to rescind the sentence, his application was unsuccessful, raising concerns about potential violations of South Africa’s obligations under the ICCPR.
Kate Dent observed the emergence of “lawfare” in South Africa, which is characterised by the judicialisation of politics. In this system, legal processes are employed to address primarily political matters. This phenomenon has predictable implications for judicial legitimacy. As political issues migrate into the judicial domain, the authority of the courts expands, prompting inquiries into the legitimacy of courts assuming a “political” function.
Unfortunately, South Africans always look at engagements by courts in illegal processes with a tainted lens, especially when the punishment is directed at those they dislike. There is also hardly an appreciation that tables could be turned at some point, and the law is used against us as individuals or a group. In addition to Zuma, the law has seemingly been weaponised against former Justice John Hlophe and Busisiwe Mkhwebane. This raises concerns that the courts might be used to suppress dissent and silence those who question undemocratic tendencies within South Africa’s democracy.
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