PAUL HOFFMAN: Poll choice is between revolutionary tinkering and constitutionalism

When the National Assembly meets for the first time after the May elections its first order of business will be to elect the next president of SA. 

If the pollsters are to be given any credence, there will be no single party that will be able to command the votes of 50% plus one of its members. Until that vote is taken President Cyril Ramaphosa, whose “new dawn” and long-promised “renewal” of the ANC have proved chimeric, will continue in office.

The first sitting must take place not more than 14 days after the National Assembly election result has been declared. The chief justice, or another judge designated by him, presides over the election of the president.  

If there is a vacancy in the presidency for whatever reason, the chief justice is empowered under the constitution to call an election to fill the vacancy. The election, in which only members of the National Assembly participate, will be of a  person elected from among its members by secret ballot.  

It is accordingly necessary to be elected to the National Assembly to be eligible for presidential office in SA. Should the ANC do badly at the polls, it is foreseeable that Ramaphosa may resign and retire from politics, thereby creating a vacancy. He reportedly contemplated doing so after the Phala Phala scandal broke.

Failure in the form of loss of support in the forthcoming elections would amplify his lack of appetite for high office. The Nosiviwe Mapisa-Nqakula scandal must weigh heavily on Ramaphosa because he removed her from his cabinet to lead parliament as speaker. 

As there is likely to be no single party able to command the necessary simple majority in the first round of voting, some frantic horse-trading may be expected once the official results are declared. As similar circumstances may obtain in various provinces, the horse-trading will be replicated at provincial level and will depend on the strength of the various bigger parties in each province. There will be rushed efforts to meet the constitutional deadlines applicable to the elections of leaders.  

Under schedule 3 of the constitution, the chief justice must make rules prescribing, among others, the manner in which the voting for the new president is to be conducted. This power may be sufficiently widely construed to enable the chief justice, if so requested, to hold the voting in abeyance pending the finalisation of the negotiations that may be needed to achieve sufficient consensus to arrive at an electable candidate.

This happy outcome may flow from wider coalition talks. There is even the unlikely, but possible, eventuality that a government of national unity could emerge. If the allowable elimination rounds of voting are permitted to take place before coalitions take shape, chaos could ensue. 

At this stage — much can change between now and the election date — it seems the bigger parties are the ANC (around 40% and falling), the DA (about 20% and rising) the EFF (around 10%) and the MK (also about 10%). Pollsters are careful to say they are not in the business of predicting, but none indicates that any other party will reach double figures.

About 20% of the members of the National Assembly are nevertheless likely to represent smaller parties that could play a critical “kingmaking” role, and the secrecy provision raises the spectre of wildcat voting rather than party discipline. 

The ANC leads the tripartite alliance, which has been in office in national government since 1994. The other significant members of the alliance are the SA Communist Party, which chooses not to field candidates in its own name, and trade union federation Cosatu. They are both given a quota of public representatives by the ANC. 

The DA is a member of the multiparty charter (MPC) with several smaller parties. This grouping has yet to make its presidential candidate known. Much will depend on how each component party does in the election and on the outcome of the likely coalition negotiations. The MPC will dissolve into superfluity should it fall below 50% of the popular vote, leaving each party to fend for itself. 

Neither the EFF nor MK are in alliance or coalition with any other party at national level — not yet anyway — but the EFF’s track record in coalitions in local government is that of a somewhat grubby spoiler. The party has said the price of a coalition with the ANC is that EFF leader Julius Malema’s right-hand-man, Floyd “VBS” Shivambu, must become minister of finance. This implies that Malema has his eye on the deputy presidency. Whether the ANC is prepared to stomach these demands remains to be seen. 

A grand coalition of the left — those parties that support the notion of a “national democratic revolution”, the ANC, EFF and MK — could together approach the magical two-thirds majority that would enable them to tinker in revolutionary fashion with those provisions of the constitution that do not require the 75% majority prescribed in section 74(1).  

Citizens concerned about possible interference with the rights guaranteed to them in the bill of rights will be aware that a two-thirds majority is needed to amend it. Those citizens unfamiliar with the hegemonic strivings of the national democratic revolution should consult the book written by Anthea Jeffery of the Institute of Race Relations, Countdown to Socialism, in which she explains that much of what is wrong with SA today is attributable to the revolutionary zeal of the ANC. 

Speculation

Assuming Ramaphosa does not quit, he will probably be the candidate of the ANC and its alliance partners. Malema is the likely candidate for the EFF, and it is not yet known who will be nominated by MK. There is much speculation as to who will be nominated by the ANC should Ramaphosa quit. ANC chair Gwede Mantashe might be a favourite had he not been fingered as a Bosasa beneficiary before the Zondo state capture commission. The truth is that there is no obvious successor to Ramaphosa in the ranks of the blighted ANC leadership. 

It needs to be noted that having served two terms as president, Zuma falls foul of section 88(2) of the constitution because nobody may hold office as president for more than two terms. This is a salutary, pro-multiparty democracy provision that guards against the “big man” syndrome that has wrought so much damage to freedom-loving people elsewhere in Africa, and indeed the world. Having served twice, Zuma is disqualified from being a future president. 

The Electoral Commission of SA (IEC) believes Zuma also falls foul of the eligibility provisions that limit who may stand for election in the National Assembly based on an interpretation of section 47(1) of the constitution, which may or may not be correct. The electoral court has ruled in Zuma’s favour, but its reasoning is not yet known. The ultimate interpretation will be left to the Constitutional Court. 

Those voters who are comfortable with a revolutionary future will make their choices between the ANC, EFF and MK, and those who prefer constitutional democracy under the rule of law, with a transformative constitution to protect them firmly in place, will not. A revolutionary coalition capable of cobbling together a two-thirds majority in parliament could, and probably would, do untold harm to SA’s constitutional democracy.  

The constitution may not be perfect, but upholding it is preferable to the pursuit of the revolutionary ideology of the ANC, EFF and MK. Fortunately, the leadership of the three parties have issues with each other that may render a coalition between them unattainable. Re-absorbing splinters risks being spiked.

• Hoffman is a director of Accountability Now.