African National Congress national chair, Gwede Mantashe, was reported at the weekend as saying the party had no powers to force leaders facing criminal charges or other allegations of wrongdoing to step aside from party positions.
This, he told the Sunday Times, emerged from legal opinion the party had sought, which indicated that stepping aside would have to be ‘a voluntary act’.
‘Stepping aside is a voluntary act, it’s a function of consciousness and a desire. You take that decision yourself,’ Mantashe was quoted as saying. ‘There’s clarity that stepping aside is a voluntary act, it’s a function of consciousness and awareness, it is not an organisational compulsion. Once it is compulsion it becomes something different called suspension.’
His comments, which follow the court appearance of ANC secretary-general, Ace Magashule, on charges of corruption, fraud and money-laundering, arise from President Cyril Ramaphosa’s statement on corruption in the ranks in August.
He said the ANC’s National Executive Committee (NEC) had decided: ‘Cadres of the movement who are formally charged with corruption or other serious crimes must immediately step aside from all leadership positions in the ANC, legislatures and other government structures pending the finalisation of their cases.’
He added: ‘The NEC agreed that this will be a turning point in the fight against corruption.’
Mantashe’s remarks appear to suggest no such turning point has been reached – because the ANC’s hands are tied.
But what does the ANC constitution itself say about dealing with those in the ranks who guilty – or even accused – of corruption?
The Daily Friend has extracted the following clauses as a guide to readers in making up their own minds about whether the ANC is powerless or not.
A fundamental clause falls under rule 4, Membership:
4.16 On being accepted in the ANC, a new member shall, in a language he or she knows well, make the following solemn declaration to the body or person designated to administer such oaths: “I, […], solemnly declare that I will abide by the aims and objectives of the African National Congress as set out in the Constitution, the Freedom Charter and other duly adopted policy positions, that I am joining the Organisation voluntarily and without motives of material advantage or personal gain, that I agree to respect the Constitution and the structures and to work as a loyal member of the Organisation, that I will place my energies and skills at the disposal of the Organisation and carry out tasks given to me, that I will work towards making the ANC an even more effective instrument of liberation in the hands of the people, and that I will defend the unity and integrity of the Organisation and its principles, and combat any tendency towards disruption and factionalism.”
Being in breach of this oath is the first item under Acts of misconduct. Other acts of misconduct are far-reaching.
25.17 The following conduct by a member, officer bearer or public representative shall constitute misconduct in respect of which disciplinary proceedings may be invoked and instituted against him or her:
25.17.1 Acting in breach of the membership oath;
25.17.2 Conviction in a court of law and being sentenced to a term of imprisonment without the option of a fine, for any offence;
25.17.3 Failing, refusing or neglecting to execute or comply with any ANC Policy, Standing Order, Rule, Regulation or Resolution adopted or made in terms of this Constitution or breaching the provisions of this Constitution;
25.17.4 Engaging in any unethical or immoral conduct which detracts from the character, values and integrity of the ANC, as may be determined by the Integrity Commission, which brings or could bring or has the potential to bring or as a consequence thereof brings the ANC into disrepute;
25.17.5 Behaving in a manner or making any utterance which brings or could bring or has the potential to bring or as a consequence thereof brings the ANC into disrepute;
25.17.7 Behaving in a manner which provokes or is likely to provoke or has the potential to provoke division or impact negatively on the unity of the ANC;
25.17.9 Abuse of elected or employed office in the Organisation or in the State to obtain any direct or indirect undue advantage or enrichment;
25.17.12 Undermining the respect for or impeding the functioning of any structure or committee of the ANC;
25.17.17 Prejudicing the integrity or repute of the Organisation, its personnel or its operational capacity by:
25.17.17.1 impeding the activities of the Organisation;
25.17.17.2 creating divisions within its ranks or membership;
25.17.17.3 doing any other act which undermines the ANC’s effectiveness as an organisation; or …
25.17.18 Being convicted in a court of law for the offence of fraud, theft of money, corruption, money-laundering, racketeering or any other act of financial improprietary;
25.17.19 Soliciting or accepting any bribe for performing or not performing any task pertaining to or in connection with the ANC;
25.17.20 In the case of a public representative, breaching his or her contract of deployment concluded with the NEC;
25.17.21 In the case of a member of an ANC Caucus, failing, refusing or neglecting to carry out or execute an instruction or mandate of such caucus.
The party’s National Disciplinary Committee’s functions are set out in detail:
25.20 The NDC shall have jurisdiction to:
25.20.1 Hear and adjudicate upon any violation or act of misconduct contemplated in Rule 25.17 above and referred to it by the relevant body.
25.21 Where the NDC acts as a disciplinary tribunal of first instance, it shall have the competence to impose the following sanctions:
25.21.1 a fine;
25.21.2 a reprimand;
25.21.6 suspension of membership;
25.21.7 expulsion from the ANC;
25.21.8 in the case of an office bearer, removal or suspension from office;
25.21.9 in the case of a public representative, cancellation or suspension of his or her contract of deployment and/or removal from any list or instrument which entitles such person to represent the ANC at any level of government; and
25.21.10 A combination of sanctions set out in 25.21.1 to 25.21.6 above.
One option is Temporary Suspension:
25.56 The NEC, NWC, PEC or PWC, as the case may be, may, at any stage prior to the commencement of disciplinary proceedings against a member summarily suspend the membership of that member in accordance with the provisions of this Rule.
25.57 Before making such a decision, the NEC, the NWC, the PEC or the PWC, as the case may be, shall:
25.57.1 Have due regard to the nature and seriousness of the alleged violation or act of misconduct;
25.57.2 Consider the likelihood of the member engaging in further acts of misconduct;
25.57.3 Consider the impact on the repute of the Organisation of the alleged violation or act of misconduct and/or further acts of misconduct that the member could engage in;
25.57.4 Put the accusations to the member for comment;
25.58 Due to the circumstances and urgency of the matter, the Secretary General or the Provincial Secretary, as the case may be, acting on the authority of the NEC, the NWC, the PEC or the PWC, may convey the decision of temporary suspension to the member telephonically.
25.59 Should the member fail, refuse or neglect to make representations or make it impossible for the NEC, the NWC, the PEC or the PWC, as the case may be, to give notice of its intention to suspend the member, the NEC, the NWC, the PEC or the PWC, as the case may be, may proceed to make such decision.
25.60 If justifiable exceptional circumstances warrant an immediate decision of temporary suspension of a member without eliciting the comment or response of such member as contemplated above, the NEC, the NWC, the PEC or the PWC, as the case may be, may summarily suspend such member.
25.61 The member shall immediately be informed of such suspension either directly, by letter or telephonically or, if that is not possible, through a public announcement.
25.62 In the case of the suspension of a public representative, the NEC, the NWC, the PEC or the PWC, as the case may be, must also provide for any terms and conditions which will regulate the member’s participation and conduct as a public representative during the period of suspension.
25.66 The temporary suspension shall remain in force until the finalisation of the disciplinary proceedings, including any appeals or reviews, provided that the NDCA may, upon application, or of its own accord if the circumstances so warrant, set aside such suspension at any stage.
25.67 During the temporary suspension the member shall not be entitled to exercise any of his or her rights in terms of the Constitution, save for attending the disciplinary proceedings and enforcing his or her right of appeal and/or review.
25.70 Where a public representative, office-bearer or member has been indicted to appear in a court of law on any charge, the Secretary General or Provincial Secretary, acting on the authority of the NEC, the NWC, the PEC or the PWC, if satisfied that the temporary suspension of such public representative, office-bearer or member would be in the best interest of the Organisation, may suspend such public representative, elected office-bearer or member and impose terms and conditions to regulate their participation and conduct during the suspension.
Finally, Rule 26 – Rules and Regulations – grants the NEC the right to frame a code of conduct to cover all members and structures:
26.1 The NEC may adopt Rules and Regulations for the better carrying out of the activities of the ANC.
26.4 The NEC may frame a code of conduct to cover all structures, officials, public representatives, office bearers and members.
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