#Rhabul'apha!
31 March 2021
“Of step aside, of the rule of law, of revolutionary morality and the movement”
Lwando Majiza
Preliminary Notes:
This past weekend political contradictions in the ANC NEC were sharpened and the legitimacy crisis of the ANC deepened. This follows the discussions around guidelines which were meant to put flesh on the populist and bare resolution of “step aside”. We thought we should add our “two cents” into the conversation. This is more urgent a conversation because of the various commentary from all fronts around the debate.
The calls for the Secretary General of the ANC to step aside and the nuances surrounding Cde David Masondo and a whole lot of other comrades, charged with or implicated in “serious crimes”; requires of us to speak about this particular resolution without any fear of reprisals because we know of the ANC to be an organization which embraces open discourse.
Many of our comrades including the ANC President have been fingered of malfeasance albeit some not being formally charged. This has inevitably led society and membership base of the movement to zoom into the resolution particularly looking at the questions of consistency and general application.
This debate has also invited criticism to the ANC as to the speed and vigor within which it is being attended to as juxtaposed with other important resolutions such as the Nationalization of the reserve bank, redistribution of land, provision of free education and other socially beneficial resolutions.
An impression has been created that we focus much on discussions and debates that are inward looking to the compromise of the objectives of service to the people and the creation of a national democratic society characterized by non-sexism, non-racialism, democracy and prosperity. This impression further alienates the support base of the broader mass democratic movement and widens the trust deficit between the organization and its support base.
Sister organizations including the SACP, COSATU, SANCO and components of the PYA such as SASCO, YCL COSAS and the ANC-YL are also not at their best. Members of the SACP are not content with and view their leaders as a captured cartel which only subscribes to communism in rhetoric and not in action. COSATU has been hijacked by people not so interested and articulate of the workers position but more interested in ANC factionalism and divisions, of course we do know that some of them wished to be officials of the ANC and COSATU was just a second option. The less said about SANCO, the better.
As regards the PYA; it is worth noting that the ANC has successfully killed the Youth League and is reluctant to have a program of rebuilding unless it places those who will further the ends of their politically unhygienic factions at the helm so that they sing! SASCO appears to be captured by NEHAWU which to an extent compromises their once independent voice. Students seem to no longer fully identify with the program of SASCO.
These are uncomfortable debates for me around SASCO as my exit was rather unceremonious and therefore will not comment further. The sooner the YCL identifies itself outside the cult of the party GS, the better, all few of them need to define a political and class programme to work on. As regards COSAS; I wish to not comment.
Calls have been made for the reconfiguration of the alliance without a revolutionary concomitant plan and action. Just recently there has been Isankxwe / hullaballoo on the support of the ANC towards local government elections. NEHAWU and their stooges at the forefront of this call to boycott election campaigns on behalf of the ANC.
COSATU is likely to make a similar pronouncement but its compromised leadership can’t afford to make a call which undermines the term of the incumbent president unless it is a coordinated arrangement to undermine the leadership of the ANC Just as we have seen with the Madlanga authored Judgment of the constitutional court permitting individuals from contesting and the party political funding Act.
These actions promote liberalism and place our democracy and the value system of collective leadership at the shivering hands of liberals and conservatives in society.
Scary developments have besieged our forever young democracy such as the imminent incarceration of former President Zuma, the calls for the impeachment of the Public Protector, the widening crisis of the ANC and the entirety of the well-coordinated grievous assault against the peoples course.
I wish to particularly address the axis of politics, law and morality. We now begin to address those.
The Freedom Charter:
From the 25th to the 26th of June 1955, about 3 thousand delegates from all walks of life convened at Kliptownn to constitute what would be known as the congress of the people. They sought to consolidate what would later be known as the fine print of the South African liberation struggle and a “white paper” to the globally celebrated South African Constitution.
What they sought to achieve was the codification, buy inn and the unification of the marginalized groups of people. The following year was the famous women’s March in 1956 which sought to entrench the position of women in the struggle for political liberation and the intersectionality of economic and gender struggles. The end goal was a consolidation of all disenfranchised forces.
Consequentially the FREEDOM CHARTER was adopted in 1955. The freedom charter was to serve as a basic guiding document of all people suffering injustices, its crafting followed the “African Claims” thought feeling. The legitimacy of the freedom charter derives its existential and legitimacy positionality from the fact that it was widely adopted, its provisions a product of broad consultations and consensus and its contents commanded legitimacy of at least the majority of South Africans and allied forces.
To this day, the freedom charter still enjoys political legitimacy because of its politics and the processes leading up to its adoption.
From the outset the freedom charter (Which is an appendix to the ANC Constitution) charges “We the people of South Africa declare for all our country and the world to know…” this declaration emphasizes the buy inn of the people.
Amongst the clauses relevant for purposes of this contribution include the provisions that:
• All shall be equal before the Law
• All shall enjoy equal human rights
• No one shall be imprisoned, deported, restricted (prejudiced/judged) without a fair trial (Own emphasis)
• Repeal of all discriminatory laws on grounds of amongst others, belief (Political or otherwise)
• Police and the Prosecuting authority shall be open to all on an equal basis and shall be helpers and protectors of the people.
The freedom charter concludes with a clarion call that “Let all who love their people and country now say, as we say here; These freedoms, we will fight for, side by side, throughout our lives until we have won our liberty”.
We must pause to impress on the basis of our selection of the freedom charter as the foundational text of our intervention hereto. The ANC adopted the Freedom Charter as it’s primary document at its Watershed Morogoro Conference. This meant that our actions and claims would be guided by its spirit and object.
The ANC is supposed to be a liberation movement with its core focus the liberation of our people and service to them and not a political party obsessed with populism and elections. Hence the draconian Quatro practices have been largely denounced as they went against some of the above cited freedom charter core principles.
Even post democracy, democratically advanced resolutions including “automatic expulsion” of members who sought refuge in the courts of law against decisions of the organization could not pass the constitutional muster thus were discarded.
The freedom charter spirit and purport therefore forms the yolk of the South African Constitution and the ANC constitution at least in as far as rights and procedural issues are concerned. An analysis of any ANC resolution, clause or policy must therefore be tested against the freedom charter.
This is more necessary when one gives regard to the indisputable fact that it is the ANC that popularized and continuously campaigns using the ideals of the freedom charter.
Constitutional Foundations of the South African Constitution and the ANC:
I now wish to briefly highlight, relevant Constitutional provisions of both the Countries constitution and the ANC. The constitution of the republic in its preamble and foundational values acknowledges our bitter past and envisions a better future largely premised on the freedom charter which is deserving of our unconditional and universal protection.
The constitution identifies the comprehensive Bill of Rights as the cornerstone of our democracy which the ANC bitterly fought for.
The Bill of Rights promotes and protects the rights to achievement of equality, nondiscrimination, right to conscience, right to inherent dignity, right to freedom of security right of association, right to campaign and pursue a political course and various other rights.
Most notable for this opinion are the rights to just administrative action which lawful, reasonable and procedurally fair, right to access to courts, and the section 35 rights of accused persons to remain silent, presumption of innocence, right against self-incrimination etc. In this regard, the principle of legality amplifies this position through amongst others the established norms of ius acceptum, ius praevium, ius certum and ius strictum. Any conduct which is criminalized or punishable ought to satisfy these norms.
A cumulative reading and interpretation of these interventions will give a weight that even when tested against organizational norms will emerge on top. This is the position particularly because of the morally superior status of these rights and principles. As such, no organizational norms/ resolutions can surmount the authoritative force of these rights especially when understood in the context of the freedom charter and our past of arbitrary treatment of accused or suspected people. Not least in a democratic dispensation which our movement passionately campaigns for its preservation.
In turn, the ANC constitution in its preamble acknowledges the relentless struggle waged by the ANC and our forebears.
It further pledges all of us to abide by its constitution, the freedom charter and other duly adopted policy positions. Disruptive and factional tendencies are discouraged. The pledge enjoins all of us to protect the integrity of the organization and its principles. It further calls on us to defend the ANC’s unity.
The ANC’s character is engraved in principles of respect for elected leadership, collective leadership, consultation and mandate seeking. Whereas it is a “broad church” values of self-criticism and constructive criticism are embraced. This is precisely why I am opining hereto; to criticize the absence of leadership, the lack of broad consultation , the ignorance of branches as basic units, the undermine of underlying values and to lament on the inherent contradictions of the “step aside” resolution and it’s subsequent factionally selective application. I am doing so conscious of the reality that nobody cares!
In rule 5 we are afforded an entitlement as membership to actively discuss and formulate policy positions and an entitlement to offer constructive criticism to any member, official or policy. We are further enjoined to hold a duty of observing honesty and loyalty.
Rule 11 counsels us on the powers of the National Conference which include the powers to appoint a commission and assign tasks to it. For our purposes, the same rule cautions that our decisions and determination of policy are subject to the overall constitutional framework of the republic and the ANC.
In rule 12 an emphasis is made that in as much as the NEC is the highest decision-making organ in between congresses; such a task must be undertaken with due regard to the general principles of legality and the laws of the land.
Therefore, the task of the NEC in carrying out congress resolutions without prejudices must always be underpinned by an appreciation that; only those resolutions capable of implementation and are practicable must be carried out. This must be done with the acceptance that constitutional positions, guidelines and resolutions, bare as they may be; they are given flesh and breath by established policy positions which are not at liberty to deviate from the ensembling foundational values.
Whereas the ANC constitution empowers the NEC to institute disciplinary in terms of the appendix 3 processes and procedure. The comprehensive rule 25 fortunately takes stock of the jurisprudential interventions which have developed over the years resulting in the ridding of several backward and undemocratic practices and resolutions. At the top of my mind, I recall the automatic expulsion issues, the Ramakatsa decision, the Majiza decisions and the plurality of matters that have come before courts related to the movement.
Rule 24 establishes the integrity commission and advises that alleged actual or perceived disreputable conduct must be referred to it, whereas rule 25 provides for the referral of matters to the Disciplinary Committee. Of interest at this stage are the rebuttable presumptions of knowledge of the ANC constitution and policies by those fingered and their innocence thereof.
Furthermore, all members are cautioned to not use these forums in order to stifle debate or solve private problems. An exhaustive list of grounds for disciplinary hearing is codified thereto and an obligation placed upon authorities that be to expeditiously deal with matters before these forums.
These forewarnings were deliberately placed by the ANC because of it’s appreciation of the nefarious use of state apparatus by comrades to intimidate fellow comrades, the laying of charges to advance factional ends, the appetite of comrades for mechanical solutions to deep rooted political problems, abuse of power, triple reality of money, power and sex.
These safeguards were put in place particularly so as to strike a balance between organizational interests and those of the individual member. A recent example is the Western Cape’s Advocate Bongo finding, whom albeit having been exonerated has got no recourse against the pressure and the decision to have him resign.
NASREC RESOLUTIONS:
Allow us to now touch a bit on Nasrec resolutions. A proper reading of the resolutions reveals that the resolutions process at NASREC was rather a hurried job. To this effect paragraphs 4,5 and 6 of page 17 bear testimony.
For an example the conference report acknowledges that discussions were not exhausted thereby making the following disclaimer:
“…Ratified recommendations of the 5th National Policy Conference where consent was present; absent such or no conclusion, tasked the NEC to finalize or REFER TO STRUCTURES FOR DISCUSSIONS TOWARDS A SPECIAL NGC”.
Suffice to note at this stage that no resolutions have been referred to structures for finalization nor an NGC has been called as is constitutionally required. Let’s move on though so that I don’t bore you; I can imagine the impatience and annoyance at this stage. I hope you get where I am going with this though.
The national conferences noted the increase in corruption, factionalism, dishonesty and other negative practices that “seriously threaten the goals and support of the ANC”.
Further, perceived lack of integrity was identified as having seriously damaged the image of the ANC, people’s trust, its ability to occupy the moral high ground and position as a leader of society.
NASREC made an admission that state investigative and prosecutorial authorities appear to be weakened and affected by factional battles and therefore unable to effectively perform their duties.
Conferences thus resolved that “understanding the values, ethics, morality and the demands that the people, the constitution and the rule of law places on us as guardians of the state and its resources”
Conference resolved further to “demand that every cadre accused of; or REPORTED to be involved in corrupt practices account to the IC immediately or face Disciplinary Processes”
The conference also agreed on the summary suspension of people failing to give an acceptable EXPLANATION or voluntarily step down while facing DISCIPLINARY procedure, INVESTIGATIVE OR prosecutorial procedure.
Most importantly the conference emphasized that the “ANC should respect the constitution of the country and the rule of law and ENSURE BEST POSSIBLE LEGAL ADVICE”.
A harmonizing interpretation of these resolutions and a proper analysis of what was appreciated will inevitably lead to the conclusion that any efforts at renewal, restoration of morality (albeit a contested concept), promotion of ethical conduct and other considerations could not necessarily mean an undermine to the freedom charter values, the constitutions and most importantly the bill of rights.
Through the eye of the needle document instructs that revolutionaries understand policy positions and lead by example. It says they are products of battles for social transformation, they seek to influence and are amenable to and willing to be influenced too.
If we still harbor revolutionaries; I wish to persuade them that the belligerent, narrow reading and application of this resolution is rather unfortunate, opportunistic, factional, selfish, selective, obnoxious, revisionist, repugnant and well-choregraphed to purge adversaries of the establishment and those seeking to challenge the status quo!
On Democratic Centralism:
As professor Boysen would have noted that the reorganization of the ANC as an exiled liberation movement aimed at seizing state power and its relations with the SACP, the ANC had to be influenced by the communist bureaucratic methods of organization. Democratic centralism thus became one of the organizing principles or norms.
Democratic centralism ensured and still enforces cohesion and uniformity. The principle ensures that decisions of higher structures bind lower structures. It ensures protection of the views of the minority whilst appreciating the collective wisdom of the majority.
A scientific deductive method of synthesizing views is employed to ensure extraction of substantive views to make up the whole.
The ANC embraces this principle as not simply the rule of the organizational elite over the masses. It however places a premium on open and democratic internal debate and emphasizes that the organization corrects itself from within whilst emphasizing a strong and central coordination; so, contends Anthony Buttler.
President Zuma at the closing address of the 2008 YL congress remarked “Once the organization has taken a decision, they are binding even to those who did not advocate for them. In the ANC we put the organization above the individual. UNITY is central and must be protected at all times”.
The 2010 Organizational update delivered by the then SG Gwede Mantashe, noted with affirmation that “The influence of money in our processes has the biggest potential to change the character of the movement from being people being people centered and driven in all process to one where power is being people centered and driven in all processes to one where power is wielded by narrow circle of those who own resources”
Democratic centralism is described as a method of how to best organize and to lead revolutionary transformation of society. There is no uniform approach or correct proportions to the principle of centralism.
Centralism actually promotes interdependence of democracy and experience in a sense that views must be synthesized to give effect to amongst others the considerations of coherence, decisiveness, efficacy, thorough discussions, minority views, collectivism, criticism and principle. The resultant effect is essentially that all decisions must be informed by the majority having had regard to full, informed and frank discussions. Such decisions must be capable of an internal reviewal not oblivious to tactical and strategic flexibility.
I want to conclude this topic by actually asserting that democratic centralism is no blind check. To the contrary, it is a principle that assists us to take scientific and well thought decisions. It is through democratic centralism that the movement is capable of balancing the various interests of society and the constituency. Therefore, a balancing act between this principle and the available framework cannot be overemphasized.
Revolutionary Morality:
Che, Fidel, Sankara and other great revolutionary martyrs have expanded much on this subject. Central to their views were anti-imperialism, centrality of the masses, practicality and a love driven passion.
The 2000 NGC called for the creation of the decade of the cadre as means to politically deal with many aberrations such as corruption, personal enrichment, careerism etc. The NGC further observed issues of the erosion of revolutionary morality and some of the salient issues. A powerful observation of the NEC was the need to educate people about due process and an appreciation that problems of the ANC are not merely a consequence of lack of discipline but symptomatic of the collapse in political culture.
Several philosophers and intellectuals have spoken on ethics and moral especially in politics. The likes of Plato and Aristotle laid the basis.
The question of morals and ethics is mostly raised in abstraction without a concomitant guidance for practical concrete realities. They thus become susceptible to a subjective mechanical employ of the dominant narrative and grouping. We ought to transform our observation of morality to a way of life and infuse it to a guided political culture and way of life.
It is a known fact that comrades drag matters which are before courts whilst the name of the organization is being soiled. In the alternative, the Prosecuting authority postpones, and delays matters to the prejudice of affected parties. Capacity issues of the NPA are also at play. We all know that on average, criminal matters involving politician may go for at least 5 years only to be later withdrawn or jettisoned. The unfortunate part is that the prejudiced part usually enjoys no recourse.
A proper balance needs to be struck under the circumstances in giving consideration to the voluntary step aside expectation. The means and ends test becomes a critical factor.
The Russian revolutionary party to this effect established the Central Control and Auditing Commission of Russian Federation Communist Party, their version of the integrity commission. The distinguishing traits of this commission are that it has clear guidelines and is accountable to congress, its most contentious findings are handled by a joint sitting and handled by congress. This avoids a top down approach to issues and avoids a second power thereby vesting power with the rightful people, the basic units.
There ought to be an objective criterion to morality in a revolutionary context. The debate of whether the ANC is a revolutionary party capable of exercising revolutionary morality and the implications thereof will be spared at this stage.
Ours for now is to ask; to what extent can aggrieved or arbitrarily treated person place their reliance on the abstract notion of revolutionary morality at the expense of their freedoms, rights, dignity and their known truths? Doesn’t the innate self-preservation instinct automatically kick in?
The Law and Morality:
It is conceivable that what is lawful may not necessarily be moral. A greater standard is placed on morality which in turn derive their legitimacy from general acceptance. Whereas the law regulates external actual conduct of the person; morality is more concerned with the state of mind and derived from community standards not necessarily legal breaches.
Legal positivists and proponents of natural justice have continuously debated the question of Law and Morality.
For an example a Positivist Hart does not believe in the interdependence of law and morality although he accepts these may influence one another only on interpretive tasks of the law. Therefore, he concludes that conformity to morals is not a legal requirement and unenforceable through cohesive means.
Naturalists such as Dworkin and Fuller see the law as means to achieving a social order that is just and equitable. They argue that the law derives its validity through conformity to the moral functional test.
It is inconceivable therefore that the law and morality will not likely clash from time to time. The role of a conscious organization and leadership is to strike a balance and manage those contradiction as they may arise. Natural justice principles such as the audi patterm rule dictate that every party must be head and each case dealt with on its merits.
Conclusion:
There can be no legitimate expectation on the Secretary General and other members to obey a manifestly illegal and unconstitutional resolution worst when its application is the preserve of certain members. The SARB judgment is testament to this conclusion.
The attitude of Rule 25.7 making provisions for summary suspension without the accompanying charges is therefore problematic.
What needs to be done is a cultural transformation in the party. A thorough going of resolutions and an end to the subculture of reducing conferences to polling stations and a festival of financial exchanges because we tend to miss detail.
The ongoing bickering is not healthy for the ANC and doesn’t fundamentally advance the peoples course. Instead it compromises the course. Michael Walzer counsels “restraint of war is the beginning of peace”.
For the sake of the ANC and its longevity, I think the leadership must reconsider its position on stepping aside and allow for thorough ventilation of the resolution and rule 25. In any case it won’t be the first time that a resolution is not implemented for its vagueness or problems with established policy and laws. Both me and you know of a lot of resolutions which have not been implemented.
The resolution and its implementation falls squarely into what the Communist manifesto describes as bourgeois jurisprudence when it charges “but the will of your class made into a law for all, a will whose essential character and direction are determined by the economical conditions of existence of your class”.
The same can be said of the current developments that resolutions are only implemented in so far as they concern the will of the dominant economic and political forces and that must be rejected and the freedom charter ideals respected.