Malema: Finish and klaar or klaar but not finished?

What now for Malema? Is the latest ANC national disciplinary committee (NDC) verdict plus the revised and harsher sanction the final nail in Malema’s coffin? Is he finish and klaar or is he klaar but not quite finished?

For 12 more days at least, he is still president of the ANCYL. For 12 more days he still has standing and status within the ANC. According to the ANC constitution, “a decision of a disciplinary committee only takes effect once the internal appeal procedures and remedies provided for” have been exhausted.

But the cloud that hangs above Malema’s head will probably be growing bigger by the day so that his authority and integrity may suffer severely during this period. If he chooses to appeal – and why not, he has little more to lose – his 14 days of reprieve will probably be extended especially if the appeal is lodged too late into the fourteen-day period or even on the last hour of the fourteenth day.

Since Malema’s legal team will be going back to the national disciplinary committee of appeals (NDCA) for the second time, their appeal options have been considerably narrowed – they cannot appeal for aspects of the verdict and sanction already upheld by the NDCA in their earlier appearance. Realistically, they can only appeal for the severity of the sanction to be reduced. They will seek to demonstrate, one supposes, that the NDC has failed to recognise the remorse of Malema whom they will present as someone who – together with Magaqa and Shivambu – is willing to subject himself to the structures, standing orders, codes of conduct and the constitution of the ANC.

It is astounding that Malema appealed a five-year suspension sanction but was slapped with expulsion at the end. Some of his supporters might even think that the NDC is punishing Malema for daring to appeal against the NDC. The Malema precedent might cause future “respondents” to think twice before moving from Derek Hanekom (NDC chair) to Cyril Ramaphosa (NDCA chair) and back. In fairness to the NDC, Malema has not exactly covered himself in glory through his utterances and actions in the period between the two sets of appearances before the NDC.

The process that should unfold after the appeal – if Malema chooses to appeal – is unclear. At the heart of the confusion is the matter of the constitutional “separation of powers” between the NDC, the NDCA and the NEC.

According to the ANC constitution the NDC has authority to conduct disciplinary hearings, make findings, pronounce a verdict plus the sanction it deems appropriate (within the confines of the sanction options provided for in the Constitution). The provisos for the NDC decisions are that its report must be submitted to the general secretary of the ANC and to respondents before going public. After that, the respondents can (within 14 days) take the NDC decisions on appeal. The question one can pose here is this: Since the constitution introduces the NDC as a committee established by the NEC (effectively a subcommittee of the NEC), when it submits its report to the NEC (via the general secretary) in terms of fairness of process, should the report submitted to the NEC be for noting or for approval? Best practice in administration seems to indicate that when subcommittees submit reports to the committees which established them, such submissions are for approval and not merely for noting. Yet in the case of the arrangements as contained in the ANC constitution, assuming that one reads it correctly, the NDC subcommittee seems able to finalise matters all by itself, except for the provisos I referred to above. Of course the NEC and the constitution may and can delegate/give the powers to ‘investigate’, ‘prosecute’ and ‘sentence’ to the NDC. The question is whether this is in keeping with best practice. I do not think so.

The other matter relates to the powers and authority of the NDCA in relation to the NEC. According to the constitution the decisions of the NDCA are deemed final but the NEC may, in its discretion, choose to review the decisions of the NDCA. How final are the decisions of the NDCA if the NEC has the prerogative to review them? Should the constitution not stipulate that the decisions of the NDCA shall not take effect until the NEC has exercised or chosen not to exercise its prerogative to review the decisions? Indeed, would that not be a fairer more just way of processing disciplinary decisions?

As well as the organisational and political implications of the current spat between the ANC and its youth wing, the consequences of the expulsion of Julius Malema may require the ANC to do a serious constitutional review. Such a review would deal not only with the few illustrative issues I raise above but also the questions that relate to the constitutional provisions that define the relationship between the youth league and the ANC. At a political and strategic level, while the ANC may have, through the Malema expulsion, sent a strong signal and message to all comrades who lack discipline, there are several urgent matters for the ANC to look at. There is little doubt that in expelling Malema, the ANC seeks to save itself from Malema. Were the sanction less harsh, one might have added that the ANC seeks to help save Malema from Malema. We could certainly say that with the earlier sanction of a five year suspension.

Malema is of course no child. He is an adult who must take full responsibility for his words and his actions. In fact, he celebrates his 31st birthday on March 3, if I am not mistaken.

Yet the other half of that truth is that the scale and brazen nature of the indiscretions of Malema – the kinds that have seen him expelled on February 29 2012 – were played out in public and in the presence of ANC leaders, again and again, over the past four years. It is fine to censure Malema for lack of remorse, but I am dismayed at the lack of remorse by the ANC and its current crop of leaders for having failed to act sooner, for having done nothing about Malema’s indiscretions for a long time, sometimes for having cheered him on, in short, for having failed Malema. Both the NDC and the NDCA are united in an unspoken conspiracy of denial of any wrongdoing by the ANC – a conspiracy that may come back to haunt the ANC.

Denial is a precarious basis for future corrective action. This is as true for the ANC as it is true for Malema. Both parties have to take long and serious looks at themselves in the mirror over this whole sorry saga. Malema has to re-invent his character, revamp his image and consider dumping some of the strategies and tactics that have worked for him so far. Clearly these strategies and tactics are no longer working, hence he finds himself in the cold and lonely space outside of the ANC today.

But the ANC as a party has to do something similar. Only one Julius Malema has been expelled from the party. There are at least three million younger Julius Malemas who are neither at work nor at school – both inside and outside of the ANC. Armed with their empty stomachs and hollow dreams, they have a lot of time ontheir hands and anger is building up in their hearts. Unless the ANC attends to them, the real fall guy in this saga may in the long run be Derek Hanekom and not Julius Malema.