Parliament's COPE conundrum

Eusebius McKaiser on the challenge thrown up by the Shilowa expulsion


Parliament is facing one of the most fascinating politico-legal puzzles since 1994. It is a pity that this puzzle is attracting virtually no legal or political analysis, no doubt because the political party delivering us this gem, Congress of the People (Cope), has worn us all out with their internal battles. But hear me out. It really is interesting: when two factions in a parliamentary party have an intractable battle about leadership, and one faction expels members from another faction, should parliament allow the faction that did the expelling to successfully have the 'expelled' members replaced as MPs, given that they are no longer a member of that party, and notwithstanding the unresolved faction fighting?

More to the point, will the Speaker of parliament accept a request by Mosiuoa Lekota's faction of Cope that Mbhazima Shilowa be replaced as an MP since they have expelled him as a member of the party? I suspect the Speaker will not allow Shilowa to be replaced - just yet - but this is tricky terrain. So, what are the possible scenarios of how this might play out?

One possibility is that parliament might defer to the Independent Electoral Commission (IEC) who, after all, register parties and administer the lists that are presented to it by each party of those party members who are nominated for parliamentary seats. But, when I contacted the IEC recently to get a perspective on this issue, anticipating that the opening of parliament would expose our body politic to this dilemma, a spokesperson returned my query with a clear indication that they see this as a question falling outside their ambit, and perhaps one to be settled by lawyers.

I remain unsatisfied by the IEC washing their hands of this mess. While I am no lawyer, I would have thought that the answer to this puzzle is to be located within electoral law, of which the IEC should be experts. One possibility is to see, for example, who is registered with the IEC as party leader, or contact person, to determine who, pending the outcome of court cases, the person is who is entitled to express the party's position on lists for parliament.

This solution, however, seems intuitively unfair (though I remain ignorant of the legal fact of the matter). It cannot be the case, surely, that the deponent (who, in this case, might well have been one of the Kilians, Juli or Johan) of some documents at the IEC headquarters inadvertently own the name and brand of the party.

This would mean that a random stranger who, say, deposited the registration papers and documents of the African National Congress or of the Democratic Alliance with the IEC is thereby given unchallengeable power to control the party. This is another reason why silence from the IEC is unhelpful; the correct answer must be a matter of legal (electoral) fact, rather than being a matter of debate between factions simply told to sort themselves out.

As it happens, of course, parliament has become the center of this puzzle since the opening of parliament necessitated a letter to the party to sort out its leadership battles as soon as possible. Now, however, Lekota's Cope has written a letter, following the expulsion of Shilowa, and in the letter they are notifying parliament that he (Shilowa) is no longer a member of Cope. No doubt Cope (L) will soon send the name of a replacement MP whom they want sworn in as a replacement for Shilowa. What will or should parliament do?

Parliament should, and likely will, not have Shilowa replaced, until either there is consensus between the two factions that that should happen or a court order declares the expulsion legally valid and thereby, legally at least, empowers Cope (L) to have its letter to parliament accepted as authoritative. The reason parliament will likely opt for this position is that, in the absence of consensus or a court order, it is safer for the Speaker to err on the side of caution and rather be conservative by not changing the existing MP list of Cope, pending a legal resolution of (if not consensus about) these leadership battles.

The danger of parliament taking sides is that it might embarrassingly lead to a possible scenario in which it is successfully taken to court for breach of electoral laws or parliamentary processes. That is a scenario to be avoided. Of course, not complying with the letter from Cope (L) might lead to litigation from the Lekota camp anyway.

But, politically at any rate, a parliament that says "We will not take a view until a court has declared a winner between you two or you have reached consensus" is a parliament that will not lose public face if Cope (L) were to initiate litigation. A cautious approach seems reasonable.

The drawback, of course, is that this cautious approach might lead to practical difficulties should Cope (L) pretend that Shilowa is a ghost and not interact with him or fail to acknowledge his parliamentary presence. But in that case the Speaker would presumably use their power to insist on Shilowa's seat being formally respected (even in the event of a badly functioning parliamentary party in Cope.)

If Cope (L)'s letter is immediately complied with, however, then parliament will look partial since the public knows full well that the internal battles are, as yet, not settled. Parliament is more likely to lose credibility in the public eye in the event that it simply follows the instruction from Cope (L) rather than kicking back the problem to the two factions and/or (indirectly) back to the courts.

This cautious approach by parliament is also the more likelier one because parliament has already sent a letter to the two factions, recently, asking them to deal with their internal differences. Given this recent request from parliament itself, Shilowa can now simply inform parliament that Cope (L)'s letter is not evidence of a resolution of differences, as requested by parliament, and so then, in terms of its own communication with these factions so far, parliament ought not to act on the Cope (L) letter unless legally instructed to do so by a court of law.

It goes without saying that all this is, as far as Cope is concerned, academic. Cope, Cope (L) and Cope (S) are all dead. They have been for a while now. They will hardly feature on the results board of this year's local elections. So anyone who has not read up until point in the analysis is forgiven. But, we should not let the political death of these groupings get in the way of fascinating and important principled issues that need to be settled, issues which electoral laws might not have been designed to tackle. This case will set an important legal precedent. So it needs a full airing, and ought to solicit greater debate than it has thus far, not least by electoral law experts.

- Eusebius McKaiser is an associate at the Wits Centre for Ethics and hosts a weekly politics talk show on Talk Radio 702.

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