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The FF+ poses a greater risk to our democracy than Julius Malema’s EFF ever would, writes Pierre de Vos.
Pretoria - The Freedom Front Plus (FF+), which apparently enjoys strong support among Afrikaans-speaking white people in far-flung metropolitan areas such as Carolina, Bapsfontein and Putsonderwater, has lodged a formal objection with the Independent Electoral Commission (IEC) against the registration of Julius Malema’s Economic Freedom Fighters (EFF) as a political party. The FF+ claims it would be “unconstitutional” for the IEC to register the EFF as a political party.
For legal and other reasons, the objection will fail. Here is why.
Competition between political parties with sometimes radically different ideologies and political programmes is at the heart of any functioning constitutional democracy.
Based on the assumption that the state should protect the right of political parties and leaders to advance even radical and (to some) offensive or threatening ideas, a system of constitutional democracy invests extraordinary trust in voters to make wise electoral choices to advance their own interests and the collective interests of the country.
Often this trust can seem to be entirely misplaced. Voters often make the most absurd electoral choices in direct opposition to both their own short-term self-interest and the long term interest of the country.
(For example, voters in the US twice elected a crook – Richard Nixon – as president; then voted for an actor famous for appearing in a movie with a chimpanzee (the movie: Bedtime For Bozo; the bozo: Ronald Reagan) before embarrassing themselves by supporting George W Bush. Voters in Italy voted for Silvio Berlusconi as prime minister – despite the fact that he is a slimy criminal. And in the UK, Margaret Thatcher – who had the compassion of a starved and crazed Rottweiler – won three consecutive elections as prime minister.)
When political parties are banned or disallowed from participating in elections, serious questions arise about the quality of democracy. That is why the FF+ is registered as a political party – despite the fact that its policies offend the vast majority of South Africans. That is also why the African Christian Democratic Party (ACDP) is registered as a political party – despite its belief in a vengeful and homophobic God.
Ironically, the attempt by the FF+ to get Malema and his outfit barred from elections merely because the EFF propagates policies that make the FF+ uncomfortable poses a far greater threat to our democracy than anything Malema and his party may have said or done.
The FF+ claims that the registration of EFF would be “unconstitutional” because it “propagates nationalisation of land, mines, banks and other assets without compensation, and specifically so upon a racial basis”; because Malema has been found guilty of hate speech which is “unconstitutional”; and because the word “fighters” in their name is inappropriate for a democratic dispensation.
Legally, this is utter nonsense.
The constitution does not permit banning of individuals or political parties from propagating nationalisation or from propagating changes to the constitution to allow for the nationalisation of mines, banks or property of white South Africans.
Just as the DA can propagate changes to the constitution to alter the procedure through which judges are appointed, so the EFF can propagate the nationalisation of white people’s land.
Just as the ANC can propagate the abolition of provincial government, so the EFF can propagate the nationalisation of banks. Just as the ACDP can propagate the abolition of the sexual orientation clause in the constitution, the EFF can propagate the nationalisation of mines.
Of course, the rest of us are free to argue about whether these programmes and policies are wise or promote or threaten our democracy. We can vehemently oppose certain changes to the constitution on the basis that these changes would undermine the rights of some or would be bad for our democracy.
We can also argue that the leader of a political party (including the FF+) is acting in ways that endanger the pluralistic and open nature of our democracy. For example, when a political leader attacks the notion of judicial review or tries to discredit the Concourt judges by calling them counter-revolutionaries, I, for one, will lambaste that leader for what I see as undemocratic tendencies (bloody agent!).
But I would never dream of arguing that the political party that the leader in question belongs to should not be allowed to take part in an election, merely because I think its leader is talking dangerous nonsense.
South Africans from different ideological perspectives are not always comfortable with democratic debate. They often conflate criticism with censorship and try to prevent others from criticising by claiming that the criticism is illegitimate or undemocratic. They also often wrongly conflate criticism of a political party or its leaders with undemocratic moves to prevent that party from representing the electorate. There is nothing undemocratic in calling a politician a bumbling fool, a charlatan or a selfish and corrupt self-enricher – although you might be slapped with a defamation suit if your claims are false.
Of course, we could always decide to change the constitution to include a ban on all political parties who want to change the constitution (but that would be an exceedingly silly). We could also change the electoral law to allow the IEC to refuse to register political parties who promote changes to the constitution. The Concourt will then have to decide whether such amendments to the legislation are valid. (It will almost certainly find that such amendments are not.)
Legislation allowing the IEC to refuse to register a political party whose programmes or policies threaten the very existence of the democratic state may arguably pass constitutional muster. But no such legislation exists at the moment. In its absence, the IEC does not have the legal authority to refuse to register a political party merely because the FF+ feels threatened.
Section 16 of the Electoral Commission Act does allow the IEC to refuse to register a political party if the proposed name or emblem of the political party “portrays the propagation or incitement of violence or hatred or which causes serious offence to any section of the population on the grounds of race, gender, sex, ethnic origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language”.
The name or emblem of the EFF could not possibly be said to portray the incitement of violence against any group merely because it includes the word “fighter”. If you agreed with this ridiculous assertion you might as well support the view that any politician who talks about the need to fight crime is guilty of hate speech. Political leaders who say they will fight corruption, would then also have to be found guilty of inciting violence against corrupt politicians and business men and women.
Speaking of hate speech, contrary to what the FF+ might believe, the constitution does not ban hate speech of any kind. Section 16(2) of the constitution does say that certain forms of speech do not enjoy constitutional protection, but the section does not ban speech. It merely authorises the legislature to regulate narrowly defined forms of hateful speech. The claim that hate speech is “unconstitutional” is therefore embarrassing nonsense.
The IEC can only do what the legislation authorises it to do. It can therefore only refuse to register a political party in circumstances authorised by the Electoral Commission Act. But the act does not authorise the IEC to refuse to register a party because one of its leaders have been found guilty of hate speech. Even if the leader is found guilty of hate speech a thousand times, there is no law that authorises the IEC to refuse registration to the party of that leader.
What the FF+ is in effect asking the IEC to do is to take the law into its own hands, to take unauthorised action and flout the rule of law. Its submission to the IEC therefore exposes it as an undemocratic and potentially authoritarian political party which is prepared to flout the law to advance its own interests. Such a party poses a far greater risk to our democracy than the EFF ever would. - Pretoria News
* Professor Pierre de Vos teaches constitutional law at UCT. He writes a blog - www.constitutionallyspeaking.co.za.
** The opinions expressed here do not necessarily represent those of Independent Newspapers.