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[ANALYSIS] Legal chaos at ANC’s December conference a certainty

Over the weekend the ANC in the Eastern Cape attempted to hold a conference and elect a leader. It was always going to be a highly contested gathering. With just a couple of months to go until the elective conference in December, this was to be a weather vane to help us to predict what could happen come year’s end. In the end, the conference was marred by violence and disruptions. Then, the candidate who supported Deputy President Cyril Ramaphosa in the strongest way won. Then, the delegates who lost lodged papers in court asking for the result to be declared null and void. This conference may well have given us a much more detailed roadmap of the national conference than we were expecting.

The violence that marred the ANC’s Eastern Cape conference on Saturday night was on the cards from the moment delegates gathered there on Friday. There were issues with credentials, and eventually a group of delegates was able to push past security and force their way in despite having the incorrect documents. This was a contest between the now former Eastern Cape ANC leader (and provincial premier) Phumulo Masualle, and his provincial secretary Oscar Mabuyane. The Eastern Cape is important in the national context in that it has the second highest number of branches in the party. If the KwaZulu-Natal ANC goes into the December conference with only two-thirds of its branches backing Nkosazana Dlamini-Zuma, the Eastern Cape could potentially balance it out, if a majority there back Ramaphosa. So this conference was a vital checkpoint on the road to December.

At the same time, this province also saw something of a rerun of what has happened earlier this year. In the Northern Cape the then provincial secretary of the ANC, Zamani Saul, who had already announced his strong support for Ramaphosa, took on the then Northern Cape leader (and Premier), Sylvia Lucas. Lucas may have been something of a proxy for John Block, who eventually resigned as Northern Cape ANC leader after being convicted of corruption. Lucas tried to have the Northern Cape conference postponed but was unable to force the issue. In the Eastern Cape, Masualle tried to disrupt the conference but failed.

Both in Northern Cape and now Eastern Cape, it was the provincial secretaries who took on their leaders and won.

This kind of tension within the ANC, where two factions slug it out, may have the appearance of being something relatively new, tied only to the national conference. In fact, it all goes back at least to Polokwane. That was the first national conference where the leadership of the party was contested since the ANC became the party of governance. Just months after that conference, the ANC Youth League had to elect a new leader to replace Fikile Mbalula. That dissolved into chaos on the conference floor at the University of the Free State. Bare buttocks were on display, discipline was not. A month later, the North West ANC attempted to hold a conference. The violence there (at Sun City of all places) had to be stopped by police.

These kinds of disputes have filtered down to regional level. The roots of the KwaZulu-Natal dispute has its beginnings in what happened in the eThekwini Region in 2015. There the conference collapsed four times before finally convening. Major problems have also been experienced in the OR Tambo Region in the Eastern Cape. In short, this kind of factional dispute has now come to almost define the ANC.

And the ANC’s national structures are no better off. On Sunday it emerged that a national executive committee meeting set down for three days lasted for just one. The meeting was due to take a decision on whether to appeal the Pietermaritzburg High Court ruling annulling the election of the current/former/disbanded KwaZulu-Natal leadership of Sihle Zikalala. The NEC had earlier decided to get a legal opinion on the issue. It then turned out that while the NEC had received that opinion, President Jacob Zuma had gone to get his own legal opinion.

While it does appear as if the two legal opinions had much in common (as you would expect given that they were both based on the same set of facts and the same law), what would have transpired if the two had been different? Would Zuma have ignored the NEC’s legal opinion and used his own? On what authority? This move could indicate that the NEC is now well beyond the control of Zuma, and that he is being allowed to remain simply for reasons of stability, rather than because he is feared. Perhaps.

All of this strengthens the case of those who believe that this entire political dispute involving separate parts of the ANC is destined to end up in court. But this is only the start of the legal problems facing the party. If Zuma is prepared to get his own legal opinion on an issue that could actually determine the final outcome, it is surely only a short step to him trying to use the legal system during or after the conference itself.

It may be proposed that the most simple solution is to actually just postpone the December conference. Particularly in light of the fact that the grounds may already exist on which to dispute the outcome, based on the situation in KwaZulu-Natal and the Eastern Cape (if a conference is being challenged in court, the leadership of that province, as well as the make-up of the branches, may also be called into question). But, as Mathews Phosa reminded us 10 days ago there is a problem with that option as well. He is right to point out that the ANC’s constitution demands that there be a conference of branch delegates “at least once every five years”. And that if there is no conference, the term of the current NEC and the leadership as a whole comes to an end. In real terms, this means that Zuma and the rest of the ANC’s leaders would actually have no legal power to make decisions.

What this means is that the ANC is now in the impossible position where it could be taken to court if it holds a conference and elects leadership, and taken to court if it doesn’t.

But this is what happens when factionalism is allowed to fester for so long. The roots of this deadly divide goes further back than just Polokwane. They probably have their roots in the 2001 actions of then President Thabo Mbeki. Then, he accused Phosa, Ramaphosa, and Tokyo Sexwale of conspiring against him. No proof of this was ever made public. That was surely the precursor of what is happening in the ANC now. If Ramaphosa does ultimately become leader of the ANC, it may also be the final end of a story arc that started 16 years ago.

For now, the more immediate concern is what would happen in the aftermath of this. Imagine, for a moment, that the ANC doesn’t hold a conference, or holds a conference with a disputed outcome. This would allow Zuma to do what he likes as president. Legally, he would have the power to do so. Politically, there would be, in the short term at least, no real check on his power. To remove him, or stop him, or provide any boundary whatsoever, would require Parliament to act. National Assembly Speaker Baleka Mbete would be a key player. But the ANC’s caucus would also surely be split. Chief whip Jackson Mthembu would surely want to remove Zuma or check him in some way, but would not necessarily have the means to make sure that all of the caucus would obey him.

In short, the result would probably be chaos. Everyone would be off to court, with the possibility of lengthy delays and appeals. In a situation like this, where there is no formal structure, it would seem likely that the person who would benefit would be the person who is president at the time. Zuma would have the ability and the executive power to still exert his rule. The chaos would not last forever. Eventually, Parliament would act, or there would be some kind of early election. But in the meantime, the damage caused could be immense. And of course, if the ANC caused that kind of situation, it could be punished severely in the 2019 (or earlier) poll.

It is still possible for some kind of negotiated outcome, or for there to be a decisive victory that is accepted by the loser. But the chances of chaos are beginning to rise faster the closer we get to the conference itself.

This column first appeared on Daily Maverick. Go to www.dailymaverick.co.za for more comment and analysis.

Stephen Grootes is the senior political correspondent for Eyewitness News and the host of the Midday Report on Talk Radio 702 and 567 CapeTalk. He is the author of SA Politics Unspun. Follow him on Twitter: @StephenGrootes