Legal opinions obtained by the ANC on how members facing criminal charges could step aside from their office-bearer positions are expected to top the agenda of the national executive committee (NEC) meeting this weekend.
This is the legal opinion submitted by Advocate Mashudu Tshivhase:
The nub of the issues for determination is whether any elected member of the National Executive Committee of the African National Congress has an obligation to voluntarily step down, on the grounds that he/she is accused of having committed a crime and/or face investigation or prosecutorial procedures.
It appears that there are currently members of the African National Congress currently accused of corruption.
The ANC is a democratic organization, although there is a decentralized autonomy with various responsibilities at descending levels down the pyramid to the individual member level. The ANC constitutional guarantee each member a right to participate in the activities of the organization inter alia to take part in the election and be elected.
The aforesaid right derives its existence from section 19 of the constitution of the Republic of South Africa.
The Constitution of the Republic of South Africa protect every citizen who is a member of a voluntarily association to freely participate actively in the affairs of voluntarily association without fear.
This means that a right to participate in the activities of a political party is protected under the fundamental rights.
The aspects of concern is that can elected leaders, elected by delegates in the National Conference which is supreme ruling and controlling body of the ANC be removed without consulting the ANC branches which nominated delegates from their respective branches to elect a particular leader in terms of Rule 11.4 of the ANC Constitution.
It is thus crucial that there is a need of balancing of interest and rights.
To appreciate this concern, one must consider the provision of Rule 25.70 of the ANC Constitution, the Rule reads as follows:
“Where a public representative, office-bearer or member has been indicted to appear in a court of law on any charge, the Secretary General or Provincial Secretary, acting on the authority of the NEC, the NWC, the PEC or the PWC, if satisfied that the temporary suspension of such public representative, office-bearer or member would be in the best interest of the Organisation, may suspend such public representative, elected office-bearer or member and impose terms and conditions to regulate their participation and conduct during the suspension”.
Rule 25.70 of the ANC Constitution is specific, it declares that the authority to suspend a public representative office bearer, as the case may be, if it would be in the best interest of the organization.
The ANC Constitution does not set out criteria and/or define what is in the “best interest”.
In my endeavor to try to clarify this aspect I consulted the Concise Oxford Dictionary of Current English
“best” means – of most outstanding or desirable kind, in the best manner, to the greatest degree.
“Interest” means – a concern, curiosity, a quailing exciting curiosity or holding the attention, a legal concern, title, or right, a party or group having a common concern.
Prima facie, the consequences of Rule 25.70 is that this clause seems to intend to give right to the NEC, the NWC, the PEC or the PWC, as the case may be, to interfere with the rights exercised by ANC members, at the National conference to elect a leader of their choice at the highest supreme ruling and controlling body of the ANC.
The question is are this structures entitled to interfere with such a right?
This authority is likely to set the NEC, the NWC, the PEC or the PWC; as the case may be, on a collision course with 90% delegates from branches, who were elected in a properly constituted branch general meeting and who expressed their right by electing a National Executive Committee to hold office for five years.
As already stated supra the ANC is a voluntarily association which is also registered as a political party. The relationship between the party and its members is contractual.
In August and Another v Electroral Commission and others:
“Universal adult suffrage on a common voters’ roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity. Rights may not be limited without justification and legislation dealing with the franchise must be interpreted in favour of enfranchisement rather than disenfranchisement.”
In Ramakatsa and others v Magashule and others the constitutional court held that:
“At common law a voluntary association like the ANC is taken to have been created by agreement as it is not a body established by statute. The ANC’s constitution together with the audit guidelines and any other rules collectively constitute the terms of the agreement entered into by its members. Thus the relationship between the party and its members is contractual. It is taken to be a unique contract”.
The ANC Constitution determines the powers of the organization, which powers must be exercised with due regard to the interest of its members.
The powers of the members of an organization are derived from section 19 of the constitution of the Republic of South Africa which provide that:
‘Political rights
(1) Every citizen is free to make political choices, which includes the right -
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political party;
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.
(3) Every adult citizen has the right -
(a) to vote in elections for any legislative body established in terms of the
Constitution, and to do so in secret; and
(b) to stand for public office and, if elected, to hold office.”
Over the years majority of South African, in particular Black people were denied a political right, in the democratic South Africa this right must be jealously guarded. The constitution of the Republic of South Africa provides that the Republic of South Africa is founded on the values of democracy, along with human dignity and the rule of law .
The other context relevant to the construction of section 19 is provided by the Constitution itself. In our system of democracy political parties occupy the centre stage and play a vital part in facilitating the exercise of political rights. This fact is affirmed by section 1 of the Constitution which proclaims that “[u]niversal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness” are some of the values on which our state is founded.
The Constitution of the Republic of South further describes the Bill of Rights as a cornerstone of democracy in South Africa, It enshrine the rights of all people in our country and affirm the democratic values of human dignity, equality and freedom.
The Bill of Right, in section 19 translate the broad constitutional commitment to democracy into an individual right to participate in a political party of his choice and exercise his/her democratic right within such party.
This fundamental right can not be easily ignored a choice by individual members to elect a leader of their choice within a political party is a democratic right which no one can easily take away without not hearing those individual members’ views.
The ANC in its constitution under Rule 5 guarantee a rights and duties of its members, inter alia , a right to vote and to be elected which is a central pillar of a representative democracy.
In Dube & others v Zikalala & others, it was held that:
“The organisational structure of the ANC is best viewed as a pyramid, narrowing as it ascends from the members’ level which constitutes the base and largest substratum of the pyramid, followed in order by the branch level, the regional level, the provincial level (where the provincial conference will elect the PEC), and finally at the apex of the pyramid, the national level, where branches send delegates to the National Conference (‘NC’) which elects the NEC, the highest decision making body of the ANC. The NEC comprises the President of the ANC, its Deputy President and various other officials and eighty additional members.
[32] The ANC is a democratic organisation. Although there is decentralized autonomy with various responsibilities at descending levels down the pyramid to the individual member level, the NEC still fulfils a powerful role. Rule 12.1 of the ANC constitution dealing with the NEC and its powers provides:
‘The National Executive Committee is the highest organ of the ANC between National Conferences and has the authority to lead the organisation, subject to the provisions of this Constitution.”
Our courts had reaffirmed a right of any member of the ANC to participate in the activities of the organisation and to make his/her political choice of leadership, and no one can easily take away this right, as stated supra without hearing the view of those members.
Historically the ANC, even before the commencement of the Constitution of the Republic of South, in 1969 Morogoro consultative conference deems it necessary to broadly consult with its members throughout the world to be part and express their views on issues confronting the organisation at the time.
This was a clear recognition of individual member’s right to participate in the democratic process of the organisation.
It was in this context that a number of critical issues arose within the ANC
and between the Congress movement allies this matters that dominated the Morogoro conference had been festering within the ANC since it was banned. The inclusion of members of all structures of the ANC was a demonstration of an internal democratic process which the party recognised its important before the Republic of South Africa becomes a democratic state.
Moreover, if any of the structures requires removal of any of its elected leaders the views of the individual members who elected the leadership of their choice can not be easily be disregarded, this is not a master and servant relationship, or employer and employee relationship.
It can easily be said that leaders are elected through a democratic process, stepping aside and resignation becomes a choice of an individual elected leader and can not be forced to resign and/or step aside. Of course, the are resolutions taken that a leader should voluntary step down no legal obligation can be imposed to such leader to step aside.
CONCLUSION
In the circumstances, my advise is that:
The ANC NEC, should consider getting the views of those individual members and/or branches which nominated and elected any leader, which according to other members of the NEC, hold a view that such leader need to voluntary step down.
An elected leader can not be removed on account of any other person’s pleasure, disregarding the rights of those who elected such leader in office.
Democratic process is an inclusive process, rights which individuals holds can not be easily ignored, irrespective of the circumstances.