A whiff of regime change in the air

RW Johnson writes on the significance of the recent battles in the National Assembly

The present imbroglio of the South African National Assembly is deeply revealing in several respects. (One should insist on the term "National Assembly" since all the trouble and the action has lain there, not in the Council of Provinces or the Senate before it. The term "Parliament" really denotes the two houses together.)

Getting it wrong over Parliament

First, it should be realised that South Africa's lower house, though frequently written off, has a way of confounding its critics. In good part this is because of the recurrent ability of the South African political system to throw up such thunderous majorities that they produce very powerful governments, so powerful that over time it is easy to forget that they depend, in the end, on simple parliamentary arithmetic.

Thus Jeremy Lawrence, in his biography of his father, Harry, who was Smuts' Minister of the Interior, records how during the 1930s his father more than once went to see Smuts to say he could no longer stand the reactionary policies of the United Party government led by Barry Hertzog and that he would have to resign.

At that stage it seemed that the "Fusion" UP government had such a huge majority that change was impossible. Smuts always cautioned him that he was waiting for the outbreak of war in Europe when, he hoped, he would be able to take South Africa in on the Allied side - and for that he had to remain in the cabinet. The decision would be a narrow one. So, no resignation. Sure enough, war came and this epochal decision - one of the century's most important - was taken by a parliamentary vote of just 80-67. A switch of just seven votes would have reversed that decision.

Or take Van Zyl Slabbert who memorably resigned from the Assembly in 1986 and penned his book, The Last White Parliament, in which he declared that there was no further point in Parliament for change could not come about through it. This turned out to be exactly wrong, not only because there were, it turned out, two white Parliaments after that (1987-89 and 1989-94) but because change came about quite precisely through De Klerk's famous speech in the National Assembly of 2 February 1990. This was a tragic mistake for had Slabbert remained at the helm of the PFP he would doubtless have played a major role in the transition and been a prominent member of the succeeding Government of National Unity.

How did Van - for he was my friend - get it so badly wrong? The reason, I would suggest, was that, like the rest of us, he was so awed by the power of the apartheid juggernaut - which seemed to be a great independent power in its own right - that he forgot that the whole thing was based on the shifting sands of Parliamentary power. In 1948, after all, the National Party and its ally, the Afrikaner Party, together won only 41.63% of the vote, with the Opposition taking 58.37%: only the absurd over-weighting of rural constituencies allowed Dr Malan to take power. In 1953 the now united NP won 49.48%, the Opposition 50.52%. It was not until 1958 that the NP won a clear majority (55.34%) of the vote.

In the 1981 election - Van's last as Opposition leader - the NP took a comfortable 56.96% but the emergence of the Conservative Party cut this back sharply to 52.3% in 1987 and in 1989 the NP actually lost its majority (with 48.2%). This factor is not sufficiently emphasised in many histories of the transition. The fact was that the NP had lost its majority in the electorate and might soon have lost it in Parliament too. De Klerk made his move while the NP could still call the shots and before it was forced into a coalition. In effect De Klerk accepted the logic of a NP-DP coalition, though in practical terms he soon found he was actually in coalition with the ANC.

... and now for something rather the same

Something a little similar holds true now. The DA's steady gains plus the EFF's harvest of 20 seats has begun to shift the parliamentary arithmetic. More important, the notion has set in on all sides that the ANC is losing ground and is likely to lose more. Some even wonder if the party can continue to govern if, for example, it loses Johannesburg and Pretoria in the 2016 local elections. Meanwhile, the National Assembly has become the country's key political battleground and those who thought that Zuma and Zille had between them relegated it to irrelevance will have to think again.

The current battle in the Assembly is partly over Nkandla but even more centrally over President Zuma's accountability to that Assembly, with the Opposition insisting that Zuma is constitutionally bound to appear before it to field questions at least four times a year. The truth is that since 1994 - and even before that - South Africa has had such an imperial presidency that the notion of this accountability has been rather submerged. But that presidency was built, in the last analysis, on votes in the National Assembly. The end of Mbeki's imperial presidency was very similar to Nixon's. Nixon finally resigned when Barry Goldwater told him that the votes in the Senate against impeachment could no longer be relied upon. When Mbeki was told that the ANC national executive had decided to "recall" him, he resigned because he knew that if he didn't he would be humiliatingly rejected by the National Assembly.

The continuous election campaign

In one sense parliamentary battles are shadow battles because the outcomes are known before one starts. Yet, as Bernard Crick argued, the result is that a modern parliament functions as a "continuous election campaign" in which the real audience is the electorate. This is what gives meaning to a war of position fought with argument.

The current argument of the Opposition is based on several clauses of the Constitution, starting with

Article 83(b) The President must uphold, defend and respect the Constitution as the supreme law of the Republic.

Moreover, Article 92(2) says that Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions.

And Article 56 says that The National Assembly or any of its committees may

(a) summon any person to appear before it; and

(b) require any person or institution to report to it.

But the crux lies in Article 55 (2) The National Assembly must provide for mechanisms

(a) to ensure that all executive organs of state in the national sphere of government are accountable to it; and

(b) to maintain oversight of -

(i) the exercise of national executive authority including the implementation of legislation; and

(ii) any organ of state.

All of which is clear enough. But there is no mention here of any presidential obligation to appear four times a year to field questions. This is, indeed, the only chink of light for Zuma because that obligation appears elsewhere in National Assembly Rule 111:

Questions to the President must be (a) scheduled for a question day at least once per term in accordance with the annual Parliamentary programme

Elsewhere in the NA Rules the number of questions to the President is limited to six per session.

The argument is that Rule 111 is the practical method whereby the Assembly gives effect to Article 55 (2). The ANC has not yet apparently woken up to the fact that this may not be quite water-tight. After all, the Assembly might have decided on a variety of means in order to give effect to 55(2) and the Constitution itself. There is nothing specific in the Constitution about questions or the number of appearances a year.

This might seem (and be) a slender ground on which to question the Opposition's demand but so eminent a parliamentarian as the late Mario Oriani-Ambrosini went to the Constitutional Court in 2012 arguing that some of the NA Rules might be mistaken or invalid. He lost, though the Court noted delphically that

"the Assembly's power to make rules is limited to the regulation of process and form, as opposed to content and substance".

Such words could, in the normal judicial manner, be construed in almost any way one likes which may not be unimportant if this issue ends up before the Court which, after all, has always had a steadily pro-ANC bias. Moreover, of course, while these Rules were adopted by an ANC majority in the Assembly, that same majority could decide to vary or abolish those rules.

The underlying struggle

There is, though, an even more fundamental issue which is this.

When Mandela was summoned to court by Louis Luyt, the judgement went Luyt's way and, indeed, the presiding judge had many deeply critical comments about the way Mandela had conducted himself in court. This produced a furious response from the ANC and, indeed, from the Constitutional Court, which hurriedly reversed the verdict even though it had been a major part of Luyt's case that he could not expect a fair hearing from the Constitutional Court because so many of its justices prided themselves on being personal friends of Mandela. This could hardly be denied (and wasn't) and not for the first or last time, the Chaskalson Court did not exactly cover itself in glory.

Second, when Mbeki was President and repeatedly announced clearly demented views on Aids (and often on other matters too) no ANC figures of note could be found willing to criticise the President's views, let alone reflect on his psychological stability. The whole tendency was to support Mbeki. Yet when Zuma reversed Mbeki's policy on Aids, not a single ANC voice was raised to defend those policies.

And now the whole ANC - and SACP - rallies around Zuma and loyally supports Zuma's clearly monstrous mis-spending on Nkandla.

The ANC (and SACP) thus reveal themselves to be essentially chiefly parties. Their overwhelming instinct is simply to support the Chief through thick and thin, right or wrong. In that sense they belong more truly in one of the old bantustans than in a modern, urban world. Zuma himself naturally endorses this way of looking at things. He suggests that the whole notion of corruption is a Western conceit, that it is merely a victimless crime.

What he means is that Zulu chiefs and kings have always spent large amounts of money on themselves and their subjects have loyally contributed and paid hommage, so what is wrong with Nkandla ? Similarly, he (and the ANC) argue that he must be paid an exaggerated (ie chiefly) respect and that his willingness to appear before the Assembly must depend not on rules but on its members giving him the respect that he deserves. The SACP is so enamoured of this chiefly culture that its leader even proposes laws to punish those who fail to give this respect to the Chief.

What is happening in the National Assembly is precisely the collision between that chiefly culture on the one hand and constitutionalism on the other. Despite the ANC's still large majority it is unlikely to win this battle over time. The Opposition's relentless pressure in the Assembly has already disturbed and shaken the ANC. It knows it is not winning this battle in the court of public opinion: all the polls show that. Moreover the EFF's tactic and charge in shouting "Pay back the money !" was perfectly judged. All round South Africa, among all races, this scene was greeted with simple enjoyment.

And this ties in exactly with the theme of ANC decline. The whole drive of the Opposition is to strip the ANC of its modernist, urban support - and it is precisely amongst such voters (and their MPs) that support for the Constitution is strongest and indignation over Nkandla the fiercest. The rowdy scenes in the Assembly have actually paid the Opposition well for they have focused still more attention on the continuing battle of principle.

The longer this slogging match goes on, the more likely it is that still further layers of urban ANC support will be stripped away (particularly in Gauteng) to the advantage of the EFF and DA. Moreover, while Moegeng's Constitutional Court is no less inclined to support the ANC government than the Chaskalson or Pius Langa Courts were, asking it to rule Zuma's way in this matter would probably be a bridge too far simply because asking to side against constitutionalism would mean asking it to cut its own throat.

Some commentators conclude from this that the ANC must dump Zuma. This is far too "white" a conclusion - and not just because of loyalty to the Chief. Zuma's party is built on patronage and the license to loot. The chief beneficiaries of this arrangement - in KwaZulu-Natal, Mpumalanga and the Free State - are so alarmed by the thought of Zuma going at all that they are actually demanding that his term as ANC President be extended to 2019.

Between them those three provinces command over 40% of the votes at an ANC conference - and they have already been joined in this matter by eager patronage-seekers in Limpopo and the North-West. It is too soon to know whether they will get their way but while such forces as these remain at work the ANC's thumb remains firmly down on the auto-destruct button. The whiff of regime change is increasingly in the air.

RW Johnson

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