ANC Today

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Volume 6, No. 19, 19-25 May 2006

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THIS WEEK:

* Letter from the President: To cross or not to cross the floor! 
* International Criminal Court: No hiding place for international criminals

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LETTER FROM THE PRESIDENT

To cross or not to cross the floor!

Earlier this month, on 8 May, our Parliament convened in a Joint Sitting to
celebrate the 10th anniversary of the adoption of our Constitution. Such is the
importance of our country’s basic law, that we should use the next 12 months to
popularise the Constitution among the masses of our people, to improve our
collective understanding of both the rights and the obligations that arise from
the Constitution.

This includes the moral base on which the Constitution rests, which includes
respect for life, for the dignity and the rights of every citizen, the right of
the people to govern, and the resolution of differences and contradictions among
the people by peaceful means.

This should also provide an opportunity for our Parliament, our political
parties and our country as a whole to discuss whatever constitutional amendments
might be deemed necessary, further to deepen our democracy and otherwise improve
the functioning of the democratic order, consistent with the fundamental
principles entrenched in our Constitution.

In this context, for some time now various opposition parties and others in our
society have been raising objections to the practice of “floor crossing” by our
elected representatives. Among other things, these argue that this practice is
undemocratic in that it shows disrespect for the will of the people as expressed
in our regular democratic elections.

They also say that it serves to corrupt our political system, in that,
allegedly, the ANC entices representatives from other parties by bribing them
with positions in our movement and government.

In the course of this debate, which is partly informed by the objective to
broaden general opposition to our movement, some find it easy deliberately to
misrepresent the positions of our movement, seeking to entrench the view that so
great is our hunger for power that we are quite ready to weaken or compromise
our democracy to strengthen our hold on state power.

These accusers seem to suffer from a degree of amnesia about the origins of the
legislative interventions that created the possibility to “cross the floor”, and
the issues that were debated leading to these interventions. In particular, we
must remind our readers that the push for the adoption of the “floor crossing”
legislation came from the then Democratic Party (DP) and the DA.

In its 2002 Judgement regarding the “floor crossing” legislation, the
Constitutional Court said, among other things:

“The legislation was supported by 280 of the 324 members who voted – an 86%
majority. Those voting in favour included not only members of the ANC and the
NNP, but also members of the DP...

“It also appears from the (parliamentary) report that a number of
representatives of the political parties, including the DP, the NNP, the PAC and
the ACDP, argued for an absolute freedom to cross the floor. The ANC and the IFP
seem to have been the only parties in favour of the restrictions on defections
imposed by item 23A (of the Constitution).”

We discussed the “floor crossing” issue in a ‘Letter from the President’
published in ANC TODAY Vol 4 No 38, of the week 24-30 September, 2004. We would
now like to recall what we said in this Letter.

“The two-week period allowing local government councillors to "cross the floor"
to other parties or form new political organisations also fell within this same
month of September. Many councillors therefore took this opportunity to change
their various affiliations, joining or forming other parties or political
organisations.

“Our Constitution, adopted in 1996, provided for the adoption of legislation
that would regulate such floor crossing. Those who negotiated our Constitution,
the Constitutional Assembly itself, as well as the Constitutional Court, not
only found nothing wrong with the phenomenon of "crossing the floor", but also
thought it might be necessary.

“Not too long after the Constitution was adopted, some of the opposition parties
started agitating for the passage of the floor crossing legislation allowed by
the Constitution. Recently our Deputy President, Jacob Zuma, told the story of
how the then Democratic Party (DP) had approached and shown him draft
legislation it had prepared, to speed up the adoption of the floor crossing
legislation.

“The ANC engaged in a protracted internal debate about this matter, seeking to
arrive at what it would consider to be the best outcome for our democracy and
country.

“Then, as now, our electoral system governing the election of the members of the
national and provincial legislatures is characterised by the two features of
party lists and proportional representation.

“Because of this, the number of representatives each party has in these
legislatures reflects the level of support each of the parties enjoys among the
people.

“As the ANC debated the desirability or otherwise of the adoption of the floor
crossing legislation, the point was made very strongly that such floor crossing
would undermine the will of the people. It was argued, correctly, that our
movement had to adhere to the vision contained in the Freedom Charter, that "The
People Shall Govern".

“Accordingly the point was made that, at all times, the number of party
representatives in the legislatures should reflect the strength of the party as
indicated in democratic elections. Inevitably the floor crossing would therefore
breach the principle and practice that the people shall govern, resulting in
some parties having a disproportionately larger representation, or vice versa.

“Contrary to this, the point was equally strongly made that ours was a very
young democracy. Inevitably there would be a fair degree of volatility and
dynamism in terms of the social and political consciousness of many of our
people. The point was made, for instance, that it would take some people time
before they outgrew the negative and false perceptions of the ANC they had been
fed by the apartheid regime.

“Those perceptions had been part of the body of "white fears" which our movement
deliberately and consciously addressed in the period before and after 1994. It
was therefore argued that it would take time for these fears to disappear, as
essentially white South Africa came to understand that it had nothing to fear
from democracy, non-racism and our liberation movement.

“Nevertheless, it was clear that these attitudes would necessarily change, as
those who had fears in the past experienced the security provided by a
democratic and non-racial South Africa. As a consequence of that experience,
they might, naturally, change their political affiliation even between the set
election years.

“These arguments were advanced to make the point that our political system
should show sufficient flexibility, taking into account the reality of the
volatility and dynamism of the evolving situation in our country. It was said
that it would be incorrect to seek to freeze people's views for whole periods of
five years, allowing for no political evolution except at five-year intervals.

“In itself, such insistence on a relatively static system might result in a
system of representation that would not be congruent with evolving popular
opinion. In this regard, the point was also made that even supporters of the
ANC, who had come into the movement because of their opposition to apartheid,
might now want to move to other parties on the basis that these provided them
with a different ideological home of their choice.

“Thus ANC members could very well find themselves attracted to Liberal,
Christian Democratic or other parties, reflecting similar sentiment among
sections of the masses that had been happy to follow the leadership of the ANC
during the struggle against apartheid. The argument was presented that it would
be incorrect to frustrate such natural evolution, on the basis of a proposition
that the evolving political consciousness should only be allowed to manifest
itself and make an impact on society once every five years.

“Nevertheless, despite this argument, it was also felt that the legislation we
should propose, that would enable such new consciousness to be reflected in our
legislatures, should be "restrictive" rather than "permissive". Thus, while
enabling people to "cross the floor", it would set various conditions that would
make such crossing somewhat difficult rather than easy.

“This, it was argued, would restrict, limit and contain the possibility to
ignore the will of the people, and discourage floor crossing that might be
occasioned more by selfish interests rather than genuine political evolution on
the part of the representatives.

“Of course, inherent in all this, was the argument in favour of the exercise of
the freedoms of thought, expression and association by the representatives
themselves. Despite the fact of their election on the basis of their party
political platform, we considered it wrong that these representatives should be
denied such freedom, such that they would not have the possibility to adopt
different political positions.

“In this regard, it was thought important that people should not be obliged to
stay as members of parties long after they had outgrown the understanding that
had made them to join these parties. Therefore the fact that they might lose
their seats in the legislatures would have to be dealt with, so that it does not
become an obstacle to our country's political evolution.

“On this basis we decided that such representatives should be allowed to cross
the floor with their seats. This would free them from having to stay in
organisations they felt they had outgrown, simply to preserve their membership
of the legislatures.

“Perhaps the biggest and most dramatic evidence of the evolution of political
thought in our country has been demonstrated by the fortunes of the former
Democratic Party and New National Party (NNP). In the first instance this led to
them to decide to merge and form the Democratic Alliance (DA). This, in reality,
is what caused the DP to approach the Deputy President as Leader of Government
Business, arguing for the floor crossing legislation that would enable the DP
and the NNP to form the DA.

“Of course the DA did not last for very long because yet another political shift
was taking place or was making itself felt. The New National Party, the former
party of apartheid, found that it could not successfully merge with the
Democratic Party, because it had come to believe unequivocally in a non-racial
democracy. On the other hand, the DP, the party of liberal democracy, had become
the home of the forces and ideas that sought to resist the entrenchment of a
truly democratic and non-racial society, for whom the NP had originally provided
a home.

“The DP was correct to have approached the Deputy President with regard to the
floor crossing legislation. It would have been incorrect to allow the absence of
such legislation to distort the natural political evolution in our country,
which prompted the formation of the DA, by blocking the emerging sentiments
about party affiliation from finding their organisational expression. All this
is also fundamental to the exercise of the freedoms we have already mentioned.”

With regard to the foregoing, in 1998, a Parliamentary multi-party ad-hoc
committee established to consider the issue of “floor crossing” said:

“The basic argument for this approach (in favour of a qualified freedom to
‘cross the floor’), is that during the term of the legislature there can be
significant shifts in public opinion which do not warrant fresh elections, but
which have to be represented in the legislature. By allowing groups of MPs to
‘cross the floor’ these shifts of opinion may be reflected in the legislature.
Also, genuine differences of interpretation on what mandate the electorate gave
a party, and how to implement it, can lead to splits in the party, and this
should be allowed expression by way of ‘crossing the floor’. The ability to
cross the floor also curtails the power of the ‘party bosses’ and makes for a
more vibrant political atmosphere. In short, greater democracy and
representivity is made possible through a qualified freedom to ‘cross the
floor’.”

As our political parties continue to discuss the issue of “floor crossing” in a
structured manner, as we have suggested, they will have to take into account the
observations we have reported above. They will also have to consider the
comments made by the Constitutional Court when it considered the “floor
crossing” legislation in 2002.

The Court said, “The legislation accommodates mid-term shifts in political
allegiances. Hence the 10% threshold. Bearing in mind that the purpose of the
legislation is to accommodate mid-term shifts in political allegiances and the
limited term for which a defecting member will remain a member of the
legislature it seems to us to be neither irrational nor inconsistent with multi-
party democracy to provide that the seat should be regarded as the seat of the
new party for the remainder of that member’s term. In the result the objection
to the four Acts on the grounds that they are inconsistent with the founding
values (of the Constitution) and the Bill of Rights must fail.”

We trust that all our parties and other stakeholders will discuss the issue of
“floor crossing” with the sense of responsibility with which the ANC considered
this matter, as reflected in the comments we made in ANC TODAY in 2004, as
reported above.

Thabo Mbeki

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INTERNATIONAL CRIMINAL COURT

No hiding place for international criminals

One of the most remarkable developments of recent times has been the way the
international community has tried to deal with persons who have committed
serious crimes during times of civil war, conflict or by repressive regimes.

Traditionally, whatever happened within a country was considered to be the
business of that country and other states could not interfere. We faced this
excuse of domestic jurisdiction in our struggle against apartheid. The apartheid
regime was unrelenting in its excuse that neither the United Nations nor
individual countries could interfere in what was essentially, in its view, a
matter of domestic jurisdiction.

But from 1946 onwards, the international community rejected this self-serving
approach and progressively acted, from passing resolutions to imposing
sanctions, to providing assistance to the victims of apartheid and to support
for the armed struggle. Apartheid was considered to be a crime in itself and as
reflecting the characteristics of a crime against humanity, which formed part of
the indictment against the Nazi war criminals after 1945.

This was an important development. Our negotiated settlement of 1993 meant that
the apartheid criminals would not all face trial; those guilty of gross
violations of human rights could seek amnesty.

However, the basic issue was: who would try those guilty of heinous crimes if
the country in which these crimes took place was either unwilling or incapable
of trying these after conditions of normality had returned to that country.

Pressure began to grow to ensure that there should not be impunity for these
criminals, whether they were heads of state, military personnel or civilians
involved in acts of barbarism. After the genocide in Rwanda in 1994, the United
Nations set up a special tribunal in Tanzania, which is still sitting to try the
genocidists. Also a special court was established in The Hague to prosecute war
crimes in the former Yugoslavia. These are ad hoc tribunals. They are expensive
to run and depended on political agreement at the highest level for their
establishment.

For some years, discussions took place at the international level to set up a
permanent international court. This was a fundamental human rights issue. If the
international community could not provide for such a mechanism, state
sovereignty could continue to be used to commit wanton crimes. The vast majority
of states could no longer countenance this.

As a result, 120 states took part in a UN conference in Rome in the 1998 to
establish the International Criminal Court (ICC), where the statute of the court
was adopted. The court began functioning when 60 states ratified the statute by
April 2002, which was in itself an important development, as states take a long
time to adopt new international obligations. South Africa is a proud party to
the statute and has supplied one of the judges, Judge Navanethem Pillay.

The ICC is therefore the first-ever permanent international criminal court
established to promote the rule of law between and within states and to ensure
that the gravest international crimes do not go unpunished. It exercises
jurisdiction over persons for the most serious crimes of international concern.
These include crimes against humanity, war crimes and the crime of aggression.
Added to this list is the post-1948 crime of genocide.

There are conditions laid down for the exercise of the court's jurisdiction.
Ordinarily, the court can only try a person for a crime after a state becomes a
party to the court's statute. The conduct in question must have occurred in the
territory of a signatory state or where the accused is a national of the
signatory state.

With respect to who can bring cases to the court, there is a large change from
the way states dealt with this matter in the past. First, the prosecutor may
begin an investigation which could result in a prosecution. Second, any
signatory state may do so and, most unusually, the UN Security Council may bring
a case to the court, which it has done in relation to a number of alleged
criminals in the Darfur crisis.

There is a concession towards national jurisdiction. The court's authority is
complementary to the courts of a country where the offence may have taken place.
In the first instance, it is up to the country concerned to try the accused. If
that country is unwilling or unable to do so, the matter could be referred to
the court.

The international Criminal Court is a major development in the protection of
human rights which are systematically abused. A major problem which has arisen
is not only refusal of the United States to recognise the jurisdiction of the
court but its attempts to subvert its work. The US has embarked on a campaign to
ensure that its nationals in a foreign country where they may have committed
these four crimes are kept away from the court by entering into agreements with
nearly 50 states through which these states agree to exclude the court's
jurisdiction in relation to US nationals. United States nationals operating in
these countries would therefore enjoy impunity. This a serious situation
especially since a number of developing countries have agreed to US
blandishments.

The ICC is the appropriate venue to prosecute these crimes. Therefore, we must
all resist recent calls by the big powers for the right of so-called
humanitarian intervention by military means in situations where there may be a
gross violation of human rights. Only the UN Security Council should be able to
do so; otherwise, unilateral recourse to force by the intervening powers could
be selective and aimed to achieve their own political and strategic ends.

There may be situations where a political solution may be necessary to remove a
leader who is alleged to have commited such crimes, such as in the Charles
Taylor case. The question is whether the court should exercise jurisdiction
subsequently? Will this result in the person holding on to power, if they may
face a criminal prosecution later? Does the law have to give way to the right to
peace? There is no easy answer to this. But if the ICC is allowed to do its
work, there will be no hiding place for international criminals.

** Kader Asmal is a member of the ANC National Executive Committee.

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