The Constitution vs ANC constitution
In a failed attempt to remove President Jacob Zuma by a vote of no confidence in Parliament on August 8, ANC MPs who voted with the opposition are now finding themselves in trouble, with mooted actions to remove them from Parliament and to take party disciplinary action against them (“Mutinous MPs may lose seats”, August 11).
This notion is in accordance with the ANC constitution, section 25.17.3, stating that an ANC member would be guilty of misconduct (and could be disciplined and even expelled from the party) if they fail, refuse or neglect to execute or comply with any ANC policy, standing order, rule, regulation or resolution, in terms of the ANC constitution or breaching the provisions of this constitution.
In a move to put this section into effect, Zuma spoke out against the ANC MPs who voted with opposition parties in the vote of no confidence against him. Zuma was speaking in Pongola, KwaZulu-Natal, calling for disciplinary actions to be taken against errant members.
In United Democratic Movement vs Speaker of the National Assembly and others, it is made clear that it is impossible for the party to discipline members based on party loyalty. In this judgment Chief Justice Mogoeng Mogoeng confirmed that there was an inherent tension between, on the one hand, the obligation of MPs to hold the executive accountable and to serve the people and, on the other hand, to adhere to the discipline of their party.
He stated: “Members are required to swear or affirm faithfulness to the Republic and obedience to the Constitution and [the] laws. 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.”
It seems that the ANC constitution is on trial, because if any steps are taken against ANC MPs who apparently voted with the opposition, they may call upon the courts to intervene and to resolve this dispute. It seems that United Democratic Movement vs Speaker of the National Assembly and others has set up a precedent in the matter: the MPs are accountable to the electorate, not the party.