Four things people are not thinking about when it comes to the GNU

This is a time of pretty intense confusion and consternation, given the uncertain outcome of the political discussions following the election. We are not even sure what a government of national unity (GNU) (round 2) looks like, never mind what and who constitutes it. 

Is it a permanent arrangement, secured by written undertakings? Might it have to be a matter of legislation, as the government of national unity was in 1994? Is it, or could it be, more ad hoc than that? How does an “alliance” arrangement differ from a GNU (hard to believe that acronym has become current again)?

It’s at times like these that it’s worth trying to think about the things people are not thinking about. So here are a few things that I suspect people might not know:

1. The course of action defined by the Constitution suggests that SA could quite easily have a president before the parties make a final decision about what the government will look like. This stipulation, I suspect, strengthens the hand of the leader of the party that wins the most votes, ergo President Cyril Ramaphosa, because it puts him at the centre of the discussions in a formal sense, not just in a party political sense. 

Section 86 of the Constitution requires Parliament to elect a president at its first sitting. That first sitting has to happen no longer than 14 days after the election results are announced and that, ladies and gentlemen, is Monday week. Since Monday week is a public holiday, I suspect the first sitting will be on Tuesday, June 18.  

Read more in Daily Maverick: GNU dawn for new government — unpacking the good, the bad and the ugly of it all

The reason for this very short period is to make sure there is no power vacuum. But obviously, the drafters of the Constitution didn’t take into account the possibility that a political impasse would require extensive negotiations between parties. It doesn’t matter since it only becomes an issue when the government of the day wants to pass a piece of legislation. Still, it's going to be uncomfortable because there will be a president in place while these negotiations continue.

2. Parliamentarians have to take an oath of office. Up till now this was purely routine, but now there is a thing, and the thing is that the oath of office requires MPs to honour and uphold the Constitution. The actual oath is “I, A. B., swear/solemnly affirm that I will be faithful to the Republic of South Africa and will obey, respect and uphold the Constitution and all other laws of the Republic, and I solemnly promise to perform my functions as a member of the National Assembly/ permanent delegate to the National Council of Provinces/member of the legislature of the province of C.D. to the best of my ability.”

The problem is that the MK party’s election manifesto, in its infinite wisdom, declared the party to be against several key stipulations in the Constitution, including the brilliant idea of scrapping the Bill of Rights in order to, theoretically, re-assert the power of Parliament. 

This stipulation explains why the MK party might boycott Parliament. It is, of course, possible to swear to uphold the Constitution as it stands at the moment while working against it as a matter of party policy. But it is a conundrum for the MK party and might also explain why it’s so keen to contest the results.  The party wants to slow down the whole process, while all the others want to speed it up. 

The Constitution does not say what happens if an MP decides not to take the oath, it just says they must swear the oath. Presumably, they would be excluded from Parliament if they didn’t, but once again, the drafters of the Constitution couldn’t really imagine that any party would want to scrap the Constitution. But here we are.  

3. This has been partly canvassed, but there is one aspect that has not been discussed, namely, MK party president Jacob Zuma has said that it may boycott Parliament partly because it wants that recount. But there have also been some suggestions that if MK parliamentarians don’t appear, Parliament won’t be able to be constituted. As mentioned above, this suits MK’s objective to slow the process down and generally be a spoke in the works.

What MK cannot do is halt the election of the president, since Parliament only requires a third of its membership to be present to create a quorum. With 159 members, the ANC on its own could satisfy that requirement. 

But the Constitution does stipulate that the National Assembly “consists of between 350 and 400 women and men elected as members …” What I wonder is whether MK could Stalingrad this provision. Could it, in other words, force the matter before the Constitutional Court and thereby halt all legislation until that decision is taken? Just a thought.

4. And this is really important: What if the ANC can’t form a government because, say, the ANC NEC refuses to accept the conditions laid down by the other parties? This question was answered even before the election. The short answer is that after 90 days, another election must be held. 

But here is the kicker: what if the ANC doesn’t want to go into a coalition, despite its protestations to the opposite? Why would that happen? Because given this result where the ANC has to make a terrible choice between partnering with the EFF and the DA, neither of which it wants, it might fancy its chances with a new election. 

Why would that be? Because it seems likely, or at least possible, that ANC non-voters might come forward a second time around just to avoid the mess. Therefore, the ANC has a slight incentive not to create a government. Oddly, in doing so, they would be allied with MK! 

This is an unlikely scenario. There is always the chance it could backfire and the ANC position could worsen. Also doing something that MK wants will grate ANC leadership. But it’s not out of the realm of possibility. 

I’m sure there are more items to think about that we haven’t thought about. It’s interesting seeing how the Constitution really isn’t prepared for this outcome, partly I suspect because the ANC was supposed to rule till Jesus came. Odd that the person who made the claim is responsible for that not happening. DM