If Democratic Alliance (DA) ministers begin implementing and enforcing the very policies they campaigned against, it would not be an indication of a healthy coalition adhering to the letter of law, but of a former opposition having been successfully co-opted into the agenda of the African National Congress (ANC).
To the shock and dismay of the 3.5 million DA voters across South Africa, Siviwe Gwarube last week announced that, as Minister of Basic Education, she would implement the Basic Education Laws Amendment (BELA) Act if signed by the President.
We have since been granted a three-month reprieve while further consultations occur before the most contentious provisions of the Act become law. But Gwarube has made it clear: when instructed, she will go – uninvited – into well-governed schools and interfere in the considered decisions of those schools.
Democratic mandates
While the far more fundamental and important issue here is the Nuremberg doctrine – whereby no politician or official may rightly invoke “I am only doing my job” or “I am only obeying the law” when they are engaged in deeply morally problematic acts – this article focuses on another question: what (or whose) mandate, precisely, is Siviwe Gwarube acting under?
The Constitution requires all ministers – but two – to be members of Parliament. To be a member of Parliament, one must be elected by voters on the strength of some value proposition, usually expressed in the form of an electoral manifesto (that is, “this is what we will do if your vote for us translates into political power”).
Gwarube did not materialise into Parliament out of thin air. She was placed there. And her party, the DA, was not able to place her there by an act of magic. The party was voted for, by the people who generally support the DA’s stated positions – including on education.
In all likelihood, Gwarube would not be in Parliament if she were not a member of the DA. The DA would not be in the Government of National Unity (GNU) if it did not obtain 22% of the seats in Parliament after the 2024 election. And the DA would likely not have been in Parliament at all if it was simply a carbon copy of the ANC and the policies it supports – BELA, National Health Insurance (NHI), and so forth – because people voted for the DA in large part because they recoil at these proposals.
Substance over form
It is, formally, the case that Gwarube is a minister in a government and serves at the pleasure of the President. But, in substance, she is only there because her party received a mandate of 22% from its voters, who voted for that party in part on the basis of its (not the ANC’s) education policy.
Now, Gwarube is seeking to use the mandate granted to her by her party’s voters, to do the exact opposite of what the voters whose mandate she is relying upon bestowed the mandate for in the first place.
There is a strong argument to be made that DA voters endorsed the concept that the DA would need to go into a coalition with other parties to govern.
The DA was never willing to come out and say, for a fact, that it would go into a coalition with the ANC, so the DA was never willing to test in an election whether their voters’ mandate was for a DA-ANC coalition (which is doubtful).
But, for the sake of argument, we can assume that DA voters foresaw that the DA would not rise, alone, to the status of majority party to seamlessly take its party policy and translate it into public policy.
What can, however, under no circumstances be assumed, is that the DA’s voters gave that party a mandate to simply implement the party policy of another party – and certainly not that of the ANC in particular. The DA has no democratic authority to do so.
There would be a very clear expectation that a coalition would mean some kind of mixture of the various parties’ policies, and where a given party has ministers, that is where it may implement its policy. In other words, if the DA controls the basic education portfolio, it would implement DA policy – or at least implement compromise GNU policy.
But not ANC policy. Never ANC policy.
It is a completely unsustainable argument to hold that it ever occurred to DA voters – even implicitly – that their vote for the DA would translate into the DA applying some of its blue-good-governance-magic to efficiently and effectively implement ANC policy. To believe that would probably be to impute to DA voters the exact, 180-degree, opposite of what they were doing when they bestowed a mandate on their party.
So, while Gwarube told Clement Manyathela that she is not a “DA minister” but a “SA minister,” this is only a vibey, formalistic statement that is in reality simply incorrect. The people of South Africa did not vote for her. Neither did DA voters. They voted for the DA and its policies – not her personal preferences or commitments to Ramaphosa.
Like the DA, Gwarube herself has no democratic authority to serve exclusively at the pleasure of the President. She is not one of the two extra-parliamentary persons the President may appoint, nor is she a member of the President’s party which does, indeed, have a democratic mandate to implement that party’s education policy.
Options
Nothing about this is simple or easy, and if what you are getting from this column is that I am oversimplifying something complex, you are misreading it.
Coalitions are complicated creatures. But in the rest of the world, where coalitions are commonplace, they are not vehicles through which the major party continues to enforce its policy like it may have done when it governed alone.
The ANC is trying to have its cake and eat it too, by seamlessly transitioning from absolute power to a coalition while still carrying on with ANC policy. This is untenable, and the ANC’s coalition partners have no mandate to allow it to do so.
But, apparently, its partners – especially the DA, the most senior junior partner – have allowed the ANC to behave as if it still retains its absolute majority.
There are, then, several options open to the involved players:
- Gwarube can resign her post as a matter of conscience. She has no mandate to implement BELA and must therefore step aside. Every DA, Freedom Front Plus (FF+), or Inkatha Freedom Party (IFP) person subsequently made Minister of Basic Education must necessarily do likewise. The result of this might mean the DA gets assigned a different portfolio, or the DA’s share of GNU posts decreases proportionally. This is the scalpel option that leaves the DA in the GNU with its “leverage.”
- The DA can resign from the GNU on the basis that it is being improperly compelled by the President – which it (the DA) had put in power – to implement ANC policy as opposed to (new) GNU policy, upon which DA preferences would have had influence. The ANC would then be forced to become a minority government, potentially with DA confidence and supply, or sack up with the Economic Freedom Fighters or uMkhonto weSizwe which would mean the end of Ramaphosa and his faction. This is the hammer option that takes the DA out of the GNU.
- Gwarube and the DA could remain in the GNU but take tangible action to frustrate or undermine the implementation of BELA, starting with Gwarube going Stalingrad on the law and tying it up in committees, workshops, and task teams for the remainder of the parliamentary term. This is the Machiavellian option, that keeps the DA in the GNU but requires some brass balls I fear the party might not possess. It places the ball in Ramaphosa’s court to dismiss Gwarube and end the GNU.
There are others who believe the only “option” is for the DA to do whatever the ANC requires of it and ignore the mandate of its voters entirely. This is, of course, a (co-)“option,” but it ultimately means there is no point to voting for the DA or anyone other than the dominant party.
The DA will never have an absolute majority of the seats in Parliament – it will always be a partner in a coalition – and if the argument is that the DA may never implement its own policy, and the DA embraces this argument (as it often has in other contexts), then this is not a party that is meaningfully participating in the democratic contest.
But… it’s the law!
ANC bots on Twitter have latched onto an argument they believe to be foolproof: the BELA Act was adopted by Parliament and signed by the President. It is law, in other words, and therefore Gwarube must implement it, just like a totally non-ANC government would still have to implement the laws on the books if they won an absolute majority in the election.
This is an attractive argument on paper but is practically useless.
There are dozens, if not hundreds, of Acts of Parliament on the statute book that are not only not implemented, but which the ministers responsible for them do not even know exist. There are dozens of provisions in Acts that require ministers to establish this task force and that committee, formulate this plan and implement that framework, which simply is never done.
This is true historically, and around the world, as well.
During the 1980s, many National Party ministers and officials steadily began to not implement standing Apartheid laws. These laws were eventually repealed, but for a long while they stood on the books and were simply not implemented. In some cases, they were not implemented because implementation had become practically impossible, and in other cases they were not implemented because the ministers and officials understood that to do so would be morally and ethically problematic.
Further afield, in the United States, the Department of Justice in 2013 announced that it would cease implementing the federal marijuana prohibition in states that have legalised it, despite that being a standing federal law on the books. States, and sometimes counties and cities, often refuse to implement federal laws, for various reasons from protecting illegal immigrants or local gunowners from federal abuse. (Like the United States, South Africa is a federation, and our constitutional rule that places federal law higher than subcentral law in the legal hierarchy is the same as that which applies in the United States, where they call it the supremacy clause.)
Like it or not, ministers and officials do have some measure of discretion about whether to implement laws on the books. This is a precarious and tentative discretion to be sure, but in practice it unequivocally exists.
Challenge it in court
Yet still others say that even if BELA is a problem, it has to be challenged in court. The minister and the GNU should focus on stability and governing. This is a sexy argument especially for ANC bots and transformaniacs, because they know what the court’s likely judgment will be.
And therein lies the problem.
The ANC came to power the moment the interim Constitution came into operation in April 1994. It has governed for the whole duration of the lifespan of that constitution and of the current Constitution. The ANC has, therefore, also governed for the full 30-year period that the current incarnation of our judicial system has existed.
The unavoidable result is that, to a large degree, just like the civil service is the ANC’s civil service, the courts are the ANC’s courts. This is not to say they are not the best, most benign part of the ANC’s ecosystem – they certainly are, and commendably so – but to suppose that the courts have not been captured ideologically by the ANC’s political agenda would be naïve.
This is natural, of course.
Appointing authorities will always appoint judges who, to some degree, share their views on jurisprudence and public policy. This the ANC has done, and this, one hopes, the DA, FF+, IFP, and so on, would also do if given the chance.
But whereas in the United States and the United Kingdom, for example, there has been constant turnovers of power, where each major political force has had an opportunity to leave its mark on the judiciary and the construction of constitutional law, in South Africa this has not been the case. Only one party has had a chance to leave its mark on the courts and the Constitution, and that has been the ANC.
Whereas, then, in the US and UK, there was a constant intellectual battle between judges, this is largely absent in South Africa and has not been seen in our courts since the 1990s and perhaps early 2000s. While judges do dissent and disagree with one another, it is never on fundamental issues of jurisprudence.
“Transformation,” for example, is not a constitutional phenomenon. It is an ANC policy position. Yet our courts act like every second provision of the Constitution contains some “overriding transformational imperative.” The courts have also approached laws concerning property confiscation and the centralisation of state power with the ANC’s policy preferences foremost in mind.
This is a long way of saying that it is misguided to make the courts the only area of true policy contestation around phenomena like BELA.
It will be hard work to turn the judiciary into a healthy space of jurisprudential contestation, but for now the grand opportunity South Africa has secured in the May 2024 election for real policy contestation within the elected branches of government should be exploited.
Gwarube has no mandate to implement BELA. The President cannot give her such a mandate. Only her party can, but it, too, has no mandate to implement BELA. Only its voters can give it such a mandate. The ANC’s voters have given it and its functionaries the mandate to do so, but none exists for Gwarube and the DA. What remains is for the DA and/or Gwarube to resign from the GNU, or remain in the GNU and refuse to implement BELA.
The only other, real option that keeps the DA in the GNU, is to be co-opted.
If you find yourself confused or frustrated at all this, you may have taken the first step to understanding why democracy is a fundamentally flawed notion with incredibly shaky foundations. It is replete with Faustian bargains, perverse incentives, and simple intellectual dishonesty.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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Image by WOKANDAPIX from Pixabay