Urgently needed — a careful and sober discussion about who can be a parliamentarian

14 Jul 2024

The recent furore over the appointment, technically by Parliament, of John Hlophe to the Judicial Service Commission raised once again the issue of who qualifies to be a member of Parliament. The current coalition of the ANC, DA and other parties may provide a moment for further restrictions to be placed on those wanting to become MPs. However, any changes could be hugely controversial.

Last week, uMkhonto Wesizwe (MK) nominated the impeached judge John Hlophe as its representative on the Judicial Service Commission (JSC). Technically, once an MP goes to the JSC, they represent Parliament and not their party.

This was a deliberate choice by MK, which knew that it would create controversy.

Whatever the political intention, the result is that Hlophe, whom the JSC impeached for being unfit to be a judge, now sits on that same body. While there may be legal and political arguments that allow this move, one thing is clear — it is certain to undermine the legitimacy of the JSC, which was clearly part of MK’s intention.

However, as the ANC’s Chief Whip in the National Assembly, Mdumiseni Ntuli, explained last week, Hlophe is allowed to be an MP and “We can’t make law on a particular individual”.

Ntuli said, “We understand and share the concerns about his suitability for the post” on the JSC, but added: “We are a law-abiding country and we follow the Constitution.”

This follows the ruling by the Constitutional Court that the MK leader, former President Jacob Zuma, did not qualify to be a candidate for Parliament because of his criminal conviction in 2021.

That case put more public attention on the constitutional bar to entering Parliament. Essentially, unless you are of unsound mind, have been recently convicted and sentenced to more than one year in prison, or are an unrehabilitated insolvent, you can become an MP.

This has allowed people facing criminal charges (such as Zizi Kodwa) and others with questionable pasts to enter Parliament and play an important role in our politics.

As there is currently a coalition government that is directly opposed to MK, there may now be space for a national discussion about whether there should be a higher legal bar to becoming an MP.

The right to be an MP follows from the right to vote. Just about all South Africans over the age of 18 (including those in prison) have the right to vote and the Constitution allows almost anyone to become an MP if they get enough votes.

That said, the fact the Constitution does include some limitations on who can be an MP (as was underscored in Zuma’s case) establishes the principle that some kind of qualification is necessary to become an MP.

Shared interest

Several parties in the coalition government may have a shared interest in this issue. They might want to make the point that both MK and the EFF have members in their ranks who have been impeached or discredited. (MK has Hlophe and the EFF harbours the impeached former Public Protector Busisiwe Mkhwebane and the liar and fraud Carl Niehaus).

The issue could be a useful focal point to provide a point of unity for parties as diverse as the IFP, the ANC, the DA, the FF+ and Rise Mzansi.

Even the Patriotic Alliance, led by two former convicts, might well get on board because they will say they are examples of how people who are rehabilitated, through time or other processes, can still be MPs.

It might be relatively easy to get broad agreement that someone who has previously been impeached from a position, or been found guilty of an offence involving abuse of trust (such as fraud or corruption) should not be an MP. Or that the disqualification as a result of a conviction should be extended from the current five years to 10 years.

There might also be a complicated debate about whether someone facing formal charges (such as the ANC’s Kodwa) can become an MP.

While it may be relatively simple to bar someone who is facing criminal charges (although as Kodwa has shown, even the ANC’s step-aside rule can be ignored), cases like those of Malusi Gigaba and Zweli Mkhize could be more complicated.

Gigaba has findings against him from the Zondo Commission, while Mkhize is implicated in the Digital Vibes scandal, but neither faces criminal charges at this point.

However, some voters may feel that people facing such questions should not be allowed into Parliament as MPs.

These debates could get more complicated on the issue of whether there should be a minimum educational qualification.

The SA Local Government Association has confirmed that 69% of councillors have only matric or a lower qualification.

This suggests a link between educational qualifications and the quality of governance. It also shows that voters do at times elect people who do not have higher qualifications because they believe these people will represent their interests.

South Africa has had many qualification scandals, which often create huge emotional distress.

Racialised inequality

This is partly because they are a reminder of our past and of how education was used deliberately during apartheid to create our racialised inequality.

While many voters may support the idea of tighter restrictions on who can be an MP to prevent people like Hlophe or Mkhwebane from occupying important positions, there is another reason for caution.

The behaviour of the ANC and the DA during the process of creating legislation to allow independent candidates into the elections shows that parties currently in Parliament can work together (despite their different ideologies) to prevent any threat to their shared interests.

If MPs representing parties in a formal coalition can now limit who enters Parliament after them, there will be a temptation to protect those in Parliament now and to reduce competition in the future.

It must not be forgotten how quickly things can change.

While it may seem obvious that someone found guilty of misconduct by the JSC should not be allowed to be on the JSC, strange things do happen.

Imagine, for a moment, if Thuli Madonsela had been impeached as Public Protector by an ANC led by Jacob Zuma and that she was the victim of a political campaign at the time. What would happen when the political winds changed and she wanted to campaign to be an MP?

And what if she wanted to be on the JSC? Would those who oppose Hlophe now oppose her candidacy?

This shows how sober and careful a debate about changing the rules of eligibility for Parliament needs to be. And how difficult it could be to find a system that prevents incidents like the Hlophe case from happening again while keeping that eligibility open to almost everyone. DM

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South Africa

Shared interest

Racialised inequality