Will the ANC step up on step-aside rule?

Ten years ago, when he was still Free State premier, Ace Magashule invited a colleague to accompany him to the Guptas’ Saxonwold compound.

Though Magashule didn’t have direct business dealings with the family — it was his son Tshepiso who worked with them — he was apparently close enough to the brothers not to flinch about the way they did business with politicians.

At that meeting, Free State MEC Mxolisi Dukwana was allegedly offered a black pilot bag — “the same bags frequently used by lawyers” — full of R200 notes, he later told the state capture inquiry. In return, he said he was supposed to sign a document giving the Gupta brothers contracts worth more than R1bn in the province.

Dukwana refused, and later turned down a R2m-a-month sweetener allegedly offered to him. Soon after, Magashule fired him.

Dukwana’s testimony features in the fourth volume of the state capture commission’s report, released last week by President Cyril Ramaphosa.

Of course, none of this information was available to the 2,360 delegates who voted for Magashule as ANC secretary-general — the most powerful position in the party — at the 2017 elective conference. But it’s not as if the delegates were completely in the dark: in the months leading up to the conference, a treasure trove of leaked e-mails implicated all manner of politicians, Magashule included, in dodgy dealings with the Guptas.

Ultimately, however, his campaign machine carried more weight than the damning media reports.

It’s a performance unlikely to be repeated when the ANC again chooses its national leaders in December — and not just because Magashule has been charged with corruption and suspended from office after his refusal to step aside. A tightening of the party’s rules — a reformulation of the resolution adopted at the very conference at which Magashule was elected — means those who have been criminally charged are now barred from standing for office in the first place.

The findings of the Zondo report, along with reformulations of the ANC’s step-aside rule, could affect the party’s elective conference in December
— What it means:

The intention of the “step aside” rule back in 2017 was to clean up the ANC’s image, after corruption allegations against former president Jacob Zuma’s government eroded the party’s support in the 2016 local government elections. Five years on, it remains controversial in the party, and was the subject of a heated national executive committee (NEC) meeting just days before the latest state capture commission report was released.

In a statement after the meeting, the NEC declared that the rule “will be subject to ongoing improvement and refinement, guided by practice, policy and the provisions of the ANC constitution”.

And, it added, the party’s national officials have been mandated to “investigate and make proposals regarding any further amendments”.

In practice the responsibility for this will fall to treasurer-general Paul Mashatile, who is acting in the secretary-general’s office, and Gwen Ramokgopa, who has been appointed to assist him.

Already, following this first round of modifications, there are indications that the party intends to set the ethical bar higher. For one, the NEC has now closed the loophole that saw some leaders being elected for positions in the party despite facing serious criminal charges.

Zandile Gumede, for example, was elected ANC eThekwini chair last month despite facing corruption charges, and Mandla Msibi became the party’s treasurer in Mpumalanga despite a murder charge hanging over his head.

Both stepped aside immediately, in accordance with the original rule, but the tightening of the loophole means candidates in a similar position will now not be able to run for party office at all. And those who, like Magashule, have been suspended for refusing to step aside, will also be prevented from lobbying for positions.

The NEC has also changed the criteria for stepping aside from “serious” criminal charges to “any charge”.

It’s possible that the debate around former ANC Women’s League president Bathabile Dlamini was one of the issues that led to this. When she was recently convicted for perjury, the court gave her the option of a fine rather than a custodial sentence, which means the conviction didn’t trigger an automatic disciplinary hearing under the ANC’s constitution.

Dlamini’s future at this stage remains unclear: she is still expected to appear before the integrity commission, which could prevent her from running for another position in the party.

The ANC is coming closer to functioning more in terms of the rules of how a normal political party should function, as opposed to a liberation organisation
— Theo Venter

That’s not all that’s uncertain. Some senior ANC leaders have privately expressed concerns that the new reading of the step-aside rule could be open to legal challenge, or take the party further down a factional path.

Though the NEC says the intention is that, “as a liberation movement and a governing party, our leaders must be above reproach”, decisions about who is allowed to run might require a constitutional amendment, political commentator Theo Venter tells the FM.

This can only be done by a majority of delegates at the ANC’s conference.

Other parties, such as the DA, already provide for strict vetting of candidates in their constitutions. “The ANC is coming closer to functioning more in terms of the rules of how a normal political party should function, as opposed to a liberation organisation,” Venter says.

He adds that the recommendations made by chief justice Raymond Zondo in the state capture commission’s report should be “sufficient to tell someone that they should step aside”.

It is possible that the step-aside rule could, in the near future, be broadened to accommodate this. But so far the committee appointed by the ANC to deal with the implementation of the recommendations, led by party policy head Jeff Radebe, hasn’t reported back publicly about its work.

Venter says the myriad postponements granted to Zondo to compile the numerous volumes of his final report, which has yet to be completed, could mean the findings have a significant influence on the outcome of the ANC’s elective gathering in December.

For a start, it could mean the end-of-June deadline Ramaphosa set for tabling his formal response to the report in parliament will move closer to September, and into the period when branches formally nominate leaders for the December conference. It’s a timeline that could be to Ramaphosa’s benefit, says Venter.

As the state capture commission has primarily focused on the dealings of Zuma’s government, those implicated in some of the worst violations are, in the party’s factional divides, considered Zuma’s allies and Ramaphosa’s detractors. Preventing them from running for ANC leadership positions could ensure Ramaphosa gets the kind of convincing majority he needs to push through his policy positions and reforms.

But favouring his supporters could also damage the credibility of his renewal drive. For example, should the party leadership fail to take action against deputy state security minister Zizi Kodwa, who was mentioned in Zondo’s report, but force ANC MP Mosebenzi Zwane to step down as parliamentary transport portfolio committee chair, it would provide ammunition to those who argue that the rule is being used factionally.

Justice minister Ronald Lamola, who sits on the ANC’s committee to implement the findings of the Zondo report, tells the FM the spirit of the step-aside rule “is to see that no-one who has been tainted participates until they are cleared or their matter is resolved”.

But, he admits, that is not clear-cut or easy. “Step-aside is a painful process,” Lamola explains. “Imposing ethical leadership is a painful exercise and we are still in that process. And we are not retreating, because it is being implemented.”

He is adamant, however, that the rule is here to stay. “The only way forward is to strengthen and enhance its operation.”

In the firing line

If the ANC decides that the suggestion of guilt in the Zondo report is sufficient grounds to disqualify party members from standing for internal positions, the fallout could affect the following high-ranking officials come December:

Ace Magashule, suspended secretary-general, who has been charged with corruption in connection with a multimillion-rand asbestos eradication tender issued while he was Free State premier in 2014;
Gwede Mantashe, ANC chair and minister of mineral resources & energy, who the commission said must be investigated for possible corruption after he allegedly received free security upgrades at his private homes in the hope that he would help secure contracts for tainted facilities management company Bosasa;
Zweli Mkhize, former health minister, a former ANC treasurer-general, and MP, who is alleged to have benefited from a communications tender issued by the department of health while he was minister. Though Mkhize stepped aside from his ministerial position, he hasn’t been charged as yet;
Zizi Kodwa, deputy minister of state security and national executive committee (NEC) member, who Zondo suggested had received R1.7m from former EOH executive Jehan Mackay, who is accused of bribery;
Nomvula Mokonyane, ANC NEC member and former minister, who allegedly accepted gifts from the late Bosasa CEO Gavin Watson while she was minister in the hope that she would help the company secure contracts;
Bathabile Dlamini, ANC NEC member and ANC Women’s League president, who was found guilty of and fined for perjury in April;
Malusi Gigaba, ANC NEC member and former minister, who allegedly corruptly received payments from the Gupta brothers while he was minister responsible for Eskom;
Bongani Bongo, ANC NEC member, MP and former state security minister, who has been charged with fraud and corruption in connection to the sale of a farm in Mpumalanga;
Mosebenzi Zwane, ANC NEC member, MP and former minister, who Zondo recommended should be investigated for fraud in relation to a Free State housing project while he was MEC; and
Khumbudzo Ntshavheni, minister for communications & digital technologies, who Zondo found was “probably culpable” for paving the way for the Guptas to loot Denel.