How ANC presidential elections trump South Africa's constitution

ANC leaders greet party supporters at a recent rally.
Reuters/Siphiwe Sibeko

South Africa’s Constitution is clear on a number of issues related to the relationship between the country’s parliament and its executive. It lays down that if the National Assembly passes a vote of No Confidence in the cabinet, the cabinet must resign and the president must appoint another one. Or, if it passes a vote of no confidence in the president then the president and the entire government must resign.

In a presidential system the president is directly elected by the voters, normally has a fixed term, and can only be removed through processes of impeachment. This usually require passage of votes of no confidence, or their equivalent, in the responsible legislature or congress.

In contrast, in a parliamentary system, a president or prime minister assumes office by virtue of his or her capacity to command a majority in the legislature.

Despite various hybrid features, the South African Constitution is more of a parliamentary system than a presidential one. The party enjoying a majority presents its candidate to the National Assembly for election – as required by the Constitution. In practice, that person has been chosen by the governing African National Congress (ANC) outside the legislature.

That’s not to say that the ANC is acting inconsistently with parliamentary practice. By selecting its leader outside the legislature, and getting the National Assembly to rubber stamp its choice, it’s acting in a manner fully consistent with parliamentary practice. But where it’s departed substantially from that script is by making a sharp distinction between the party and state presidencies.

The terms of office of the two presidencies are not in sync with one another, resulting in a “dual power” structure operating. This is because there’s a long gap between the ANC’s election of its president and the general elections which determine which party will have the majority in parliament, and consequently who will become president of the country. This gap is a recurrent source of potential instability so long as the ANC remains the majority party.

Party president v state president

The ANC elects its presidents at its five yearly National Congresses. Notionally, the process of election is a grass roots one. Branches vote for their preference as leader. Their preferences are funnelled upwards through regions and provinces, with provincial delegations casting their vote for one of the candidates.

President Jacob Zuma.
GCIS

Other ANC-linked organisations, such as the Youth League and Womens’ leagues, can also cast their votes at the congresses. But they contribute just 10% of the delegates to the National Congresses. This means that the person elected to the presidency can notionally claim to be elected by the mass of the party’s membership.

All well and good – except that in practice the ANC electoral process is distorted by money, patronage, factionalism, vote-rigging. and, quite often, violence . It can be argued, with good reason, that ANC practices negates the democratic legitimacy that it claims. Nevertheless the way in which it chooses its own presidents remains its own business, and is in no way in violation of the constitution.

What’s more problematic is first, that the ANC insists that it “deploys” its party president to the state presidency. In practice, this means that if he or she wants to remain secure in office, a president needs to command a majority in the party’s National Executive Committee. A second issue is that there is a substantial period – usually between 16 and 17 months – between the election of a party president by a National Congress and the election of a state president by the National Assembly.

When there’s consensus between the party and state presidents there is no problem. This happened after Mbeki’s election as party leader in December 1997 to succeed Mandela, who stayed on as state president until the April 1999 election.

Yet when there’s tension, the constitutional authority of the National Assembly is directly undermined. This occurred after Zuma’s victory at Polokwane in 2007, with Mbeki remaining as state president until he was told to resign the office by the party in September 2008.

It was probably more by accident than design that the elections of ANC presidents and state presidents are so badly misaligned. The ANC’s negotiators during the transition to democracy probably simply failed to identify this as a potential problem. Yet the “dual power” situation which can arise, with a state president not knowing whether or not his or her actions might be countermanded by the party, is inherently destabilising, and a recipe for intra-party factional struggle.

It’s a situation South Africa can ill afford.

The next round

The ANC’s recent National Executive Committee meeting made it clear that any MP voting for an opposition party sponsored motion of No Confidence in the president will be disciplined. This means that the motion will be defeated, even if there is a secret ballot. True, there may be a handful of dissidents on the government’s benches prepared to speak and act openly against the president. But they will do so in full knowledge that it may cost them their seats in parliament.

ANC secretary general warns party MPs not to support to oust President Zuma.
Reuters/Siphiwe Sibeko

If Nkosazana Dlamini-Zuma (the president’s former wife and favoured candidate) is elected party president at the next party congress in December 2017, it’s possible that Jacob Zuma may ostensibly bow to popular pressure and resign as state president. This would enable the ANC majority in the Assembly to elect her as state president.

Alternatively, Zuma may opt to remain as state president, allowing his former wife to mobilise support for the ANC around the country prior to the 2019 general election. Even if Zuma does stand down, allowing the two offices to be combined, we may assume that he will continue to be the power behind the throne, and that Dlamini-Zuma will be kept on a tight leash – at least until the election.

A victory for the Zuma faction in December 2019 could provoke the breakaway of the defeated faction, which would probably be headed by Deputy President Cyril Ramaphosa. This could herald the reshaping of the South African party system and the formation of a coalition government following the 2019 election. Many would say “Bring it on!” to the idea of a split within the ANC, although a triumphant Zuma faction is likely to make major efforts to prevent that happening.

Alternatively, if the anti-Zuma faction was to win, and Ramaphosa was to be elected party president, he would likely face a massive backlash from Zuma loyalists, who would fear the loss of patronage positions and gravy. A divided ANC in which the present factional battles continued to openly wage is an ANC which could well go down to defeat.

Whatever the outcome of the present battles within the ANC, the party would do the country a favour by bringing the two presidencies into alignment. The person elected to the party leadership should be immediately presented to parliament for election as state president.

Roger Southall, Professor of Sociology, University of the Witwatersrand

This article was originally published on The Conversation.