It is still early days in South Africa’s era of coalition politics, with the risk, and the scale, of (unintentional) misinformation and (deliberate) disinformation about “how everything now works” being quite high.
The notion that after the 29 May 2024 election results were announced, political parties only had two weeks to form a coalition government is one such falsehood with at least two clear, better alternatives.
This has become a sort of “meme” – an idea passed on through imitation rather than critical engagement – in the discourse that pops up occasionally.
And it did so again this past week.
At the Democratic Alliance (DA)’s damp squib of a press conference announcing their withdrawal from the upcoming “national dialogue,” DA Federal Chairperson Helen Zille explained, as she has done before, why the Government of National Unity (GNU) Statement of Intent was created in a rush. She said “the Constitution of South Africa says that Parliament must be convened, and a President must be elected, two weeks after the election. So that was an unmovable deadline.”
She went on to explain how the ANC was maliciously able to exploit this hurried timeframe in its favour.
Let me not bury the headline: No, in fact the coalition negotiations need not have been rushed. The DA (and others) were guilty of a lack of foresight and diligence, and are using this seeming constitutional “reason” as a façade to rationalise the botched bargaining process.
This misrepresentation tends to bubble up whenever convenient, exactly like the false binary of ANC-DA versus ANC-EFF-MK as the only two choices for governance in the country. South Africans should be equipped to detect this nonsense.
What does the Constitution say?
Section 51(1) of the Constitution provides:
“After an election, the first sitting of the National Assembly must take place at a time and on a date determined by the Chief Justice, but not more than 14 days after the election result has been declared. […]”
Section 86(1) of the Constitution further provides:
“At its first sitting after its election, and whenever necessary to fill a vacancy, the National Assembly must elect a woman or a man from among its members to be the President.”
At a first glance this appears to communicate exactly what Zille was saying.
The problem is not that Zille has a faulty understanding of what the Constitution provides, but rather that she and many others have implicitly read much more into these two innocuous constitutional provisions.
It is, firstly, important to understand that the Constitution is not and does not pretend to be a comprehensive encyclopaedia of South African politics and governance. It sets bare minimums and a framework for governance, and expects political convention, legislation, and mature diligence to fill the gaps.
With this in mind, one will notice that the Constitution does not say that coalition negotiations may only begin after the results of the election have been announced; nor does it say that the identity of who will be the President must be decided within two weeks after the results have been announced; and nor does it say that the person elected President has to be President for the following full parliamentary term.
It’s politics, stupid
These are political questions, not legal or constitutional questions, and the Constitution leaves their answering in the political realm. This is partly why I am ambivalent about the idea of legislation being introduced to regulate coalition politics.
There is an irony here.
The DA, quite correctly, has laboriously pointed out that the GNU Statement of Intent is a binding instrument. It might not be legally binding, but it is politically binding. And political agreements must mean something in a healthy, mature democracy.
“Our word is our bond” is not meant to be an empty notion, especially not among those who fancy themselves our “leaders.”
In the mature democracies of the world, political agreements, though not enforceable in court, are regarded, politically, as though they were enforceable.
The African National Congress (ANC) and its minions constantly harping on about section this-that-or-the-other of the Constitution giving the President certain “prerogatives” is nothing more than their trying to distance themselves from their voluntary submission to the political compact of June 2024.
But when we move away from the question of presidential “prerogatives” and into the question of the formation of the GNU, the DA takes the place of the ANC and harps on about section this-that-or-the-other of the Constitution and ignores the political dimension entirely.
Both parties – and others – do this when it suits them.
It suits the ANC that the Statement of Intent is not legally binding, and thus the ANC will constantly point to the Constitution.
It suits the DA for the Statement of Intent to be politically binding, and thus the DA will constantly make the point of the compact.
In this case, it simply suits the DA that the Constitution spells out a short window to elect the President, and thus it will constantly point to this constitutional requirement to excuse why they performed so incompetently in and around the coalition negotiations.
To be sure, I do not think this misrepresentation is malicious.
Those who peddle it intuitively understand that they are wrong. In the days and weeks and months leading up to the election they realised they could be doing something the Constitution was not prohibiting them from doing, after all. But it is fair to presume that they – reinforced by many around them, including their lawyers – have come to believe the lie themselves.
The problem here, as with the false binary of ANC-DA versus ANC-EFF-MK, is that ordinary people who do not waste all their time thinking about politics or policy will accept the narrative if their preferred political leader pushes it.
In this way, potentially millions of South Africans are being misled into giving these non-ANC-aligned parties in the GNU undue sympathy and understanding, when in fact the parties should be criticised for having acted without foresight or diligence. While they should be learning lessons for the future, these parties and their supporters are patting each other on the back, soothingly, saying “you did your best”.
Here, then, follow the two alternatives to blindly and hurriedly throwing together a coalition agreement in the 14-day constitutional timeframe that immediately came to mind.
First alternative: Start early
The Constitution says that the President must be elected at the first sitting of Parliament after the results of the election were announced, which must take place within 14 days of that announcement. The Constitution says no more.
It does not prohibit negotiations from starting days, weeks, months, or years before the results are announced, or even before the election is held.
If it were not obvious that there would probably need to be an arrangement of some sort between the ANC, the DA, and others after the 2024 election, I certainly would not have been writing about it since November 2022.
The closer the day of the election came, the clearer it became to any politically conscious person that a formal coalition, or informal minoritarian arrangement, would need to be concluded that at least included the ANC and DA.
While the DA very dishonestly accused the Sunday World of spreading “fake news” after it reported in May 2024 that the DA was open to a coalition with the ANC, the party knew very far ahead of time that there was a relatively good chance that this would come to be.
We know this, because in the months leading up to the election, John Steenhuisen was asked repeatedly to publicly rule out the possibility of a coalition with the ANC. Without saying yes or no, he stuck diligently to the script: the DA will do whatever it takes to ensure that a “doomsday” coalition between the ANC, EFF, or MK does not come about.
The DA, in other words, was intimately aware of its own (perhaps eager) willingness to coalesce with the ANC.
And, in light of this reality, the DA should have, as a bare minimum, planned for such a coalition internally. It should have war-gamed various scenarios, decided firmly on its red lines and the concessions it required from the ANC, and who it wanted to represent the party in the new government. It should have developed contingency plans for when the ANC, inevitably, violated the coalition agreement. It should have, perhaps most importantly, also developed strategies for donor management when the perhaps inevitable moment came for the DA to duck out of the coalition. This is, however, the minimum.
Real diligence would have been to approach the ANC, months or a year before the election, and established a negotiating mechanism for the two parties to engage vociferously on points of agreement and disagreement. Here, the discussion documents for what might eventually have become a formal coalition agreement – depending on the outcome of the election – should have been drawn up and finalised with the approval of both parties’ headquarters.
Nothing other than a lack of foresight stopped this from happening. And we know this did not happen, because by the time the DA voted in the provincial legislature to elect Panyaza Lesufi as Premier of Gauteng, the party had seemingly not met with the man himself to discuss the terms of their support.
Second alternative: An interim government
If this first alternative was, for whatever reason, not desirable or expedient, there also exists the possibility of electing an interim President.
The Constitution says that the President must be elected at that first sitting of Parliament. Again, it says no more.
It does not say that the person elected as President at this sitting must be the leader of the largest party, nor does it say this person must be President for a full term of office.
The appointment of a temporary caretaker government by the democratically elected Parliament, that would comprise the executive authority while the coalition negotiations take place over an extended period of time, is therefore not constitutionally prohibited.
Under this arrangement, a representative of a third party that is acceptable to the main protagonists – the ANC and the DA – would be elected as President by Parliament.
This might be someone like Velenkosini Hlabisa of the Inkatha Freedom Party, Bantu Holomisa of the United Democratic Movement, or Kenneth Meshoe of the African Christian Democratic Party.
It could even be someone from the ANC and ANC-adjacent ecosystem, like former President Kgalema Motlanthe, or Moeletsi Mbeki. They could temporarily be swapped in and out again with sitting ANC MPs.
These people, more or less, are acceptable to most South Africans across partisan lines. They are not “popular” in the sense of “populist” – otherwise they would have represented bigger parties and constituencies – but that would be exactly the point.
At the same time, Parliament could, if it wanted, have adopted very narrowly crafted legislation – a Caretaker Government Act or an Interim Government Act – that strictly limited the interim President and Cabinet’s terms of action to that of a constitutional caretaker.
The Constitutional Court would probably even have granted that special legislation of this nature – which does not directly affect the interests of external, rights-bearing stakeholders – need not have gone through long-winded public participation processes.
This interim government would have given the ANC, DA, and other parties weeks, months, potentially even years of additional time to flesh out an equitable and robust coalition agreement.
To top it off, the DA would have had real leverage after the election to insist on this approach. The ANC was brought under 50% of the seats in Parliament and had no clear partner yet. It could not unilaterally dictate anything, especially with Cyril Ramaphosa’s presidency far from assured.
The two-week constitutional timeframe, in other words, should rather have been spent on constituting an interim government that was inoffensive to both the ANC and DA, with a start being made on the real coalition negotiation work the day after the interim President was chosen.
And once a coalition agreement had been concluded, the interim President would resign on the strength of the political agreement and the implicit trust bestowed upon them across partisan lines. Failing this, a motion of no confidence – which, unlike a formal “removal” of the President, can be instituted for any reason – would be adopted to compel the resignation in terms of section 102(2) of the Constitution. In other words: there is little risk to anyone, least of all the ANC, in this approach.
South Africans taken for a ride
The parties forced themselves into the inadequate two-week window to negotiate for an equitable and final GNU. This was a choice, not a constitutional obligation.
And yet South Africans have been taken for a ride, and told that the Constitution is somehow defective and needs to allow for “more time.” The Europeans, we are told, have much more time to negotiate coalitions, but we only have two weeks.
We do not only have two weeks; the Constitution is not defective. At least not in this regard.
Even if, say, the ANC refused to cooperate on either of the aforementioned alternatives, the fact remains that it is a misrepresentation to submit that, legally, the Constitution only gave the parties two weeks. In that event, it would rather be true to say that “the ANC’s political manoeuvring left us only with two weeks to negotiate.”
But this simply is not what happened.
The DA and others were ill-prepared for something they knew was coming well ahead of time. They then ended up running head-first into a trap laid by the ANC, which was also unprepared but significantly better at politicking than their new mild-mannered colleagues.
[Image: Gerd Altmann from Pixabay]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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