NEWS ANALYSIS: Disciplining ANC MPs who voted against Zuma may be a crime
It would also clearly be unconstitutional, but the ANC — which believes in a party conscience, not a personal one — doesn’t care, writes Ranjeni Munusamy
On top of a congested succession battle‚ factional wars and downplaying accusations of a hit-and-run state capture operation by the Guptas‚ a messy sideshow is in the offing as the ANC initiates disciplinary proceedings against MPs who refused to toe the party line.
ANC secretary-general Gwede Mantashe announced on Tuesday that disciplinary action would be taken against at least three of the party’s MPs who owned up to voting in support of a motion of no confidence against President Jacob Zuma last week.
The ANC’s national working committee decided on Monday that MPs who defied the instruction to oppose the motion should face disciplinary procedures as the party deemed this to be collusion with the opposition to remove the ANC from power.
This followed goading by Zuma on Sunday when he said the MPs’ actions were "bringing the party into disrepute". He also drew attention to the position of the chairperson of the ANC disciplinary committee‚ Derek Hanekom‚ who publicly encouraged MPs to vote according to their conscience.
"That’s why I am saying the ANC constitution must be applied‚ so that people who have double standards can make way for people who are loyal to the ANC‚" Zuma said‚ claiming this was "playing with fire". "We can’t have comrades who take the ANC for granted‚ who say I have my own conscience. Please don’t apply your own conscience‚ you must have ANC conscience."
Zuma is obviously bruised by the realisation that‚ after years of closing ranks and defending his scandals‚ about 35 MPs refused to do so this time. The secret ballot‚ which Zuma opposed‚ allowed ANC MPs to vote according to their conscience and without the danger of penalties.
The Constitutional Court stated in its judgment on the secret ballot that the oath of office was central to the freedom "to follow the dictates of personal conscience". "Nowhere does the supreme law provide for them to swear allegiance to their political parties‚ important players though they are in our constitutional scheme. Meaning‚ in the event of conflict between upholding constitutional values and party loyalty‚ their irrevocable undertaking to, in effect, serve the people and do only what is in their best interests must prevail‚" Chief Justice Mogoeng Mogoeng said.
But the ANC is determined to make examples of those who acted according to what their oath, not the party, prescribed. Mantashe told journalists on Tuesday that those who defied the ANC’s instructions to oppose the motion of no confidence were "no longer voting according to [their] conscience‚ you are daring your own party". He said such people were going out of their way "to undermine the organisation" and that if the ANC did not take disciplinary action against those who stated publicly that they voted with the opposition‚ they would be "destroying the essence of being an organisation".
Because there would be no "witch-hunt"‚ according to Mantashe‚ the ANC would only penalise those who had the courage to own up to their actions.
Hanekom‚ Makhosi Khoza‚ Pravin Gordhan and Mondli Gungubele had publicly stated they would vote according to their conscience.
Parliament said on Wednesday that rigorous confidentiality measures had been in place during the vote. "Parliament wishes to reaffirm that all the necessary measures were put in place to ensure the integrity of the secret ballot was not compromised‚ thereby making the identity of the voter impossible to trace‚" spokesperson Moloto Mothapo said.
The Council for the Advancement of the South African Constitution (Casac) has pointed out that disciplinary action against MPs would constitute a serious violation of the Constitution.
Casac’s executive secretary Lawson Naidoo said any reprisal‚ retribution or internal party disciplinary action may also constitute a criminal offence under the Powers‚ Privileges and Immunities of Parliament and Provincial Legislatures Act of 2004. The act protects the independence and freedom of expression of MPs.
However, the ANC seems not to care about the legal and constitutional issues‚ or the reasons some of its MPs felt compelled to defy the party line.
The basis of the motion of no confidence was Zuma’s midnight Cabinet reshuffle and the consequences for the country‚ including the credit downgrades to junk status and the recession. While Mantashe was effusive in denouncing the MPs‚ he seems to have forgotten that he was the first to speak out against the reshuffle. It was‚ thanks to him and his conscience‚ that SA knows that the list of new ministers was "developed elsewhere" and that the ANC was not consulted about it.
Mantashe says the ANC’s remedy for the flood of scandals around the president‚ including on state capture‚ is to go to the December elective conference as a united front and seek direction from the delegates. "We are not going to take any action that will split the ANC‚" he said.
Would disciplinary action against three MPs not have the effect of causing more ruptures? Clearly they did not act alone and their concerns about Zuma are not isolated. The disciplinary procedures could quickly go from a sideshow to a full-blown circus.