No-confidence vote: ANC could not fire rebel MPs
Instructions to MPs to vote against their conscience and follow the party line on the motion are illegal and unenforceable, writes Jeremy Gauntlett
THE Constitutional Court is set to decide soon whether parliament’s vote on the motion of no confidence in President Jacob Zuma will be by secret ballot.
But looming behind that is another issue that is at least as important. Would a three-line whip — which seeks to force ANC members to vote according to the party line rather than follow their consciences — be enforceable in law?
Put differently: is the ANC’s threat to fire those MPs who vote against Zuma legal, or is it an empty threat? Is it legal and constitutional to deprive MPs of their livelihood if they vote their consciences?
Whipping — which in this case means that MPs must vote and do as their party dictates — is the parliamentary practice of two centuries.
The term, which is in use in many countries, goes back to the beginnings of the modern party system. It is taken from what Oscar Wilde called the unspeakable in pursuit of the inedible: fox-hunting, in which wayward foxhounds would be “whipped in” to the pack.
The growth of political parties created a need for coherence in policy and discipline in political party caucuses. In time, whips enforcing party positions became as essential to the functioning of parliament as sewers to a city — to use Enoch Powell’s description.
Three-line whips (the item on the agenda paper would be underlined three times) were absolute. Members would be brought by ambulance to vote, if necessary. No fewer than six deaths of serving British MPs in the 1970s were ascribed to the practice.
Enforcement of caucus rule is no longer a mere matter of practice. The internal constitutions of South African political parties now buttress it.
But, more important, what does the constitution of our country say? After all, the national constitution is South Africa’s supreme law. It trumps any internal party constitution — if political party constitutions are not consistent with the national constitution, they are illegal and cannot be enforced.
The answer seems to be that members who defy the whip and vote against the party line according to their conscience in the noconfidence debate cannot lawfully under South Africa’s constitution be expelled as MPs or otherwise disciplined by their parties.
Both the ANC and the DA party constitutions contrive a very different outcome.
The DA’s is the more explicit and draconian. It provides that membership of the party automatically ceases if a public representative votes against a party resolution, or if they support a no-confidence vote in any other DA member.
Automatic expulsion, without even a disciplinary process, ensues — the purest puff of political selfimmolation.
If you are gone from the party, you are of course gone from its list — and thereby from parliament too.
The DA does allow for the possibility of a vote of conscience, but only if ordered by the party, and that possibility is very remote indeed. In the whole existence of the DA it has only been allowed once — for the Civil Union Bill that legalised gay marriage.
The ANC’s internal constitution on the point at least provides for procedural fairness. Various “acts of misconduct” can result in disciplinary proceedings.
It specifies that misconduct includes failing, refusing or neglecting to execute or comply with any “standing order”.
The latter is defined as “a directive or instruction made by a structure or authority” — such as the national working committee’s directive to MPs to oppose the motion of no confidence.
To put matters beyond doubt, misconduct of a caucus member is defined as the failure “to carry out or execute an instruction or mandate of such caucus”.
There is, of course, a somewhat applicable historical precedent.
ANC MPs Pallo Jordan and Gloria Borman were charged with misconduct on just such grounds (and, more darkly, also for fostering “anti-revolutionary forces”) almost exactly five years ago.
Defying a three-line whip, they had voted as members of the National Assembly against the Protection of State Information Bill. They also refused to kowtow afterwards.
Indeed, they gave notice of a court challenge to their charges. The national disciplinary committee appointed by the secretary-general (and chaired by Derek Hanekom: how the wheel turns) capitulated.
Another disciplinary committee in 2015 acquitted a group of councillors who refused to vote in favour of a caucus resolution to reinstate municipal employees.
The committee (this time, ministers Jeff Radebe, Naledi Pandor and Pravin Gordhan) upheld the stance of the rebels. A caucus decision must, they ruled, be both “lawful and reasonable in order to compel or direct a member to obey it or to penalise him or her for refusing to obey it”.
What makes the caucus decision to deploy a three-line whip on defeating the current no-confidence motion “reasonable”?
If it succeeds, the president and cabinet of course fall, but that is not at issue in asking the question.
The question must be: why is it reasonable to require individual members not to apply their own minds and consciences to the circumstances now prevailing in the country?
Simply to sustain a leader without regard for the facts cannot be reasonable. In such a case the ANC’s own national disciplinary commit- tee test is met — and the decision to abort the prosecution of Jordan and Borman points to the answer.
But there is a more fundamental portal to the problem, which trumps any discussion about the content of internal party constitutions.
Section 42 (3) of the constitution emphasises that the function of the National Assembly is “to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinising and overseeing executive action.”
Fundamental to the latter function of all members of the National Assembly is ensuring the discharge of the president’s own duty: he, quite specifically, “must uphold, defend and respect the Constitution as the supreme law of the Republic” (section 83(b) of the constitution) and, equally specifically, he may be removed by the National Assembly if he does not (section 89).
According to section 102 (2), he must also cease to be president if a vote of no confidence succeeds.
The oath of office of every member of the National Assembly includes upholding the constitution and “solemnly promising to perform my functions”.
Every MP is thus bound to discharge their duty to uphold the constitution — and everything else, including the constitution of their political party, is subordinate to this. In particular, they have a duty to “scrutinise” any president and to participate in a no-confidence debate and to vote in it. That vote, by that oath, must seek to give effect to what defending and upholding the constitution requires.
Anyway, the dubious requirements of fox-hunting recede in constitutional law in South Africa. The year 1994 marked, in the language of former chief justice Ismail Mahomed, “a decisive break from, and a ringing rejection of, that part of the past which is . . . authoritarian, insular, and repressive”.
Provided they are not contrary to the public interest, agreements between members and their organisations (as party constitutions are) must be enforced. But they are only that: contracts. They cannot be invoked against the constitutional right and duty of a party member serving in the National Assembly, acting in conscience and on a basis that can be shown to be reasonable, to vote either in support of or against a no-confidence motion, for instance.
That duty may require members, despite a three-line whip instruction from their party, to say to a president in the words of Oliver Cromwell: “You have sat too long here for any good you have been doing. Depart, I say, and let us have done with you.”
Gauntlett is a senior counsel and queen’s counsel practising in South Africa and London
Simply to sustain a leader without regard for the facts cannot be reasonable