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ANC Youth League Special National Executive Committee statement on the outcomes of the ANC National Disciplinary Committee
16 November 2011
The ANC Youth League held a special National Executive Committee on Saturday, the 12th of November 2011 in Benoni to deliberate and discuss the outcomes of the ANC National Disciplinary Committee, which was chaired by Cde Derek Hanekom.
The NEC of the ANC Youth League totally disagrees with and rejects the basis upon which the leadership of the ANC Youth league was convicted, and also disagrees with the unreasonable and unjustifiable sanctions given. Below we provide the bases upon which the ANC NDC outcomes are rejected and this will be the foundation of the ANC YL appeal to the NDC Appeals Committee.
1. Predetermined Outcome and composition of the NDC
There were always evident signs that a decision to suspend the leadership of the ANCYL has long been taken by the National Disciplinary Committee. The Secretary General of the ANC made public statements that the leadership of the ANC YL "crossed the line", even before the NDC begun with the process of determining whether the line was indeed crossed. The Secretary General of the ANC spoke on several occasions agitating for a harsher sentence on a case which was still in process.
It is evident from the utterances of the Secretary General that the decision to convict and sanction the leadership of the ANC Youth League was taken and agitated by the Secretary General of the ANC, who in all his statements made such intentions very clearly. The attitude and approach of members of the NDC reflected this sentiment perfectly, because they did not consider the evidence presented by the ANC YL, and only considered what was said by the Complainant. For the SG to say that the leadership of the ANC YL has `transgressed` or `crossed the line` even before a formal process to determine if there was transgression or crossing of the line was a clear directive to the NDC to convict the leadership of the ANC YL at all cost. Saying someone has `crossed the line` is a verdict, not a complaint that has to be taken through a fair process.
Speaking on behalf of the ANC, Cde Jackson Mthembu said on an SABC News interview that the ANC cannot harbour leaders of the ANC YL in South Africa and in the ANC, and the ANC did not distance itself from such articulations. This statement was a clear indication of a determination on the part of some leaders of the ANC to get rid of the leadership of the ANC YL before a due process could be followed. The manner and speed at which the NDC instituted charges was but only a way of trying to legitimise a decision already taken to get rid of the leadership of the ANC YL. The NDC ignored the evidence of the ANC National Chairperson that the articulations of Jackson Mthembu were not ANC policy and that they were entirely problematic.
In the outcome and sanctions, the NDC has raised new things that neither the defence nor the national presenter of the complainant have raised, i.e. This is a clear example of the NDC descending into the arena and becoming embroiled in the tussle between the defence and National Presenter. This questions the objectivity and impartiality of the NDC, particularly the members the ANC YL requested should be recused. Comrade Susan Shabangu for instance missed some sessions of the disciplinary hearing, including the important part of closing arguments, yet she participated courageously on deciding the verdict and sanctions of the charged members.
The statements by the spokesperson of the ANC, who according to the SG was merely reading a statement read and approved by the top six, which accused the ANCYL of having "crossed the line", being ill disciplined and having taken resolutions which were against ANC policy, are sufficient proof that the decision was predetermined. In the light of those statements including the statement of the SG when addressing FAWU that "we will be tough", indicate that the decision to punish the members of the Youth League was long taken outside the NDC and the NDC was merely convened as a way to give the decision of some of the officials some legitimacy. Cde Gwede Mantashe testified that the decision was taken by a "majority of the officials", but refused how many. He admitted though that two officials were not present, and that Deputy President Kgalema Motlanthe and Treasurer General Matthews Phosa.
2. Recusal of NDC Members
From the beginning of the National Disciplinary process, the leadership of the ANC Youth League requested that some members of the NDC recuse themselves, because of what was evidently conflict of interests. Some members of the NDC, particularly Comrades Derek Hanekom, Susan Shabangu and Collins Chabane hold private and public views that stand opposed to the political agenda of the ANC Youth League. Some of the leaders have made public vows that certain positions advocated for by the incumbent leadership of the ANC YL will never succeed as long as they are still alive.
Comrade Susan Shabangu`s public pronouncement on Nationalisation of Mines and her vow that Nationalisation of Mines will not happen in her lifetime and that nationalisation scares investors automatically conflicts her because she effectively wanted to isolate leadership of the ANC YL, which is advocating for Mines to be nationalised. This matter was raised by the representatives of the ANC YL leadership, and it was dismissed on the basis that it is not related matter. In the judgment delivered by the NDC, it was apparent that there were many inferences made to what are perceptions of the so called investors to the articulations of the ANC YL. The reaction of some of the so called investors also confirms that the issue was amongst other about an attempt to suppress the debate on Nationalisation of Mines.
Cde Derek Hanekom is recorded as having publicly said that one of the policy positions of the ANC YL on expropriation of land without compensation will not happen as long as he is in the ANC. Cde Hanekom`s impatience and dismissive approach to everything the leadership of the ANC YL and the legal representatives said was evident that he had a different agenda to settle than enforcement of the ANC Constitution. Cde Hanekom`s impatience was displayed by how he failed to control his temper and made outbursts during the proceedings. At some stage, he apologised for his conduct, and the legal representatives of the ANC YL leadership placed it on record that his temper and outbursts confirms the initial call that he should recuse himself.
Cde Collins Chabane recused himself in the previous appearance of the President of the ANC Youth League before the NDC on conditions which were given to him. How he refused to recuse himself this time around is not understandable because there is no change of anything between the last time and now on the factors that led to his recusal.
The possibility that these members used the NDC to settle political scores and suppress dissent is very high, because some of the NDC members did not attend the actual presentations of closing arguments, yet partook in the process to give verdict and sanctions to the leadership of the ANC YL. The principle of recusal of members whom the defendants are not comfortable with in any disciplinary process is sacrosanct and cannot be undermined for whatever reason. The insistence of these members to remain in the NDC even when evidence was presented that they are conflicted confirms that they wanted to utilise the disciplinary process to settle political scores and suppress dissent. This is despite the fact that section 25.2 a) and b) say that discipline in the ANC shall not:
a) Be used as a means of stifling debate or denying members their basic democratic rights; or
b) Be instituted as a means of solving private problems or as a means of interfering in the private lives of members where the norms of the organisation are not directly affected, unless such conduct itself constitutes a violation or an offence affecting the organisation
3. Unconstitutional Complainants
The Constitution of the ANC says only constitutional structures of the ANC can institute a disciplinary process and only the National Working Committee can decide where a case can be heard. In a spirit and manner that departs from these fundamental principles of the ANC Constitution, Officials instituted charges against the ANC YL leadership and refused the constitutional structures, particularly the NEC to discuss the charges. Section 25.3 of the ANC Constitution prescribes the structures that can legitimately institute disciplinary proceedings against members, and officials are not mentioned as a legitimate body to institute disciplinary proceedings.
The conflicted NDC ignored this important principle of the ANC Constitution and went ahead with the disciplinary proceedings, despite the legal representatives of the ANC YL leadership cautioning the NDC that doing so will contradict the essence of the ANC Constitution. There was no mistake in the conception of the ANC Constitution on who can legitimately institute charges against members, but it appears that such an important principle has been ignored and undermined by the NDC.
During cross examination, the Secretary General of the ANC was asked why the officials were charged on barging and Botswana statement because there is an unequivocal apology by the ANCYL. His response was that the officials of the ANCYL could offer that in mitigation of sentence. The NDC did not heed this undertaking. Instead, the respondents were denied their basic right to present evidence or argument in mitigation of sentence.
On Thursday 09 November 2011, on the day of the announcement of the DC outcome, the NDC called the defence inquiring on whether or not the President of the ANCYL will be in attendance. The defence in writing indicated that the President of the ANCYL could not attend as he was writing an examination. It was further indicated in the letter that the defence was expecting to be given the opportunity to present evidence in mitigation (if the guilty verdict is arrived at) after the verdict is delivered.
Besides the letter and promise by SG under cross examination, it is well established in any civilized country that every person including the most hardened of criminals, once found guilty in any forum, before sanction or sentence is meted out, the accused/respondent shall be given an opportunity to present evidence in mitigation. This is the most basic and fundamental right that cannot be denied to any person.
The NDC of the ANC which is the undisputed champion of human rights has violated this basic principle. It is unthinkable that the conference delegates who adopted the ANC Constitution could have even imagined that it could be used in such a draconian fashion. This raises many suspicions and questions around the integrity and legitimacy of the process. Why and what informed the haste? Does this not fuel the rumour that did rounds for some time that suggested that there are some in the ANC who did not want the President of the ANCYL to be re-elected in 24th congress? Would these charges have been brought if he had been defeated in those elections?
Misrepresentation of the ANC Youth League Constitution
The ANC National Disciplinary Committee verdict and sanctions kept on making reference to an outdated Section 11.2 of the ANC Youth League Constitution`s Code of Conduct amended and adopted by the 23rd National Congress of the ANC YL. That outdated and old Section of the Constitution reads as follows, "A person, who has been found guilty by an ANC disciplinary proceeding resulting in the imposition of the penalties of suspension, temporary forfeiture of membership rights or expulsion, such penalties shall have the same application in all structures of the ANC Youth League".
Section 11.2 of the ANC Youth League was amended and adopted by the ANC Youth League 24th National Congress to read as follows, "A person, who has been found guilty by an ANC disciplinary proceeding resulting in the imposition of the penalties of suspension, temporary forfeiture of membership rights or expulsion, such penalties shall be subjected to the internal enquiry by the corresponding disciplinary structures of the ANC Youth League". This amendment happened in the June 2011 24th National Congress of the ANC Youth League in response and reaction to branches, regions and provinces of the ANC, which at times suspend and expel members of the ANC YL from the ANC, with the vicious intention of removing them from the ANC Youth League.
The ANC YL Constitution, which the ANC NDC relied on is an outdated Constitution and we are still unaware why the ANC did not use the latest version of the ANC YL Constitution, which has got a detailed Code of Conduct and clearer Rules and Regulations of Discipline as amended and adopted by the 24th National Congress of the ANC Youth League in June 2011. Because the ANC YL Constitution compels the ANC YL corresponding disciplinary structures to subject the conviction by the ANC into an internal youth League enquiry, the National Executive Committee of the ANC Youth League will determine whether there is a basis for such an inquiry.
Inconsistency of Discipline
The sanction or sentence of Comrades Floyd Shivambu and Sindiso Magaqa is out of quilt with established principles of punishment. Both the comrades are first time offenders. However when the sanctions were meted out, Cde Floyd`s membership was suspend for three years while Cde Magaqa`s two year suspension was suspended. This reveals the witch-hunting that was spoken by some senior leaders of the ANC and members of the NDC.
Cde. Floyd Shivambu is employee of the ANC Youth League
The NDC has charged and found Cde Floyd guilty of two charges. One of the charges Comrade Floyd was found guilty of relates to a statement issued by the ANCYL. Cde Floyd was not the author of the statements, but a contact person on that statement. His name appeared on the statement by virtue of his position as an employee (spokesperson) of the ANCYL. You do not have to be elected to be a spokesperson of the ANCYL or ANC, and the ANCYL retains the right to decide on who to employ in various responsibilities and functions.
For this reason, Cde Floyd Shivambu remains in the employ of the ANC Youth League as Head of Communications and Spokesperson until the National Executive Committee of the ANC Youth League decides to retrench him.
The convictions of the ANC Youth League President are on the basis of a statement of the ANC YL National Executive Committee, which he did not read out to the media, but only responded to questions about it in the presence of all NEC members. The 1st NEC meeting press statement was read out by ANC YL Secretary General Sindiso Magaqa, and that was the statement of the ANC YL. The ANC Press statements in response to the ANC YL NEC statement acknowledged that the statement was an ANC YL statement and not President Julius Malema`s statements.
In giving evidence, all witnesses that came on behalf of the complainant admitted that the statements issued by the organisation are organisational statements and not individuals` statements, but the NDC went ahead to isolate President of the ANC YL from the NEC statement and convicted him on what the ANC YL collective said should be articulated publicly. The fact that the President of the ANC Youth League was charged for a National Executive Committee statement read by the Secretary General of the ANC YL confirms that the motives for the charges are not as a result of violation of ANC Constitution as claimed in the charges.
Throughout the hearing, the NDC and Spokespeople of the ANC continued to issue misleading statements and interviews with clear intentions to discredit the leadership of the ANC YL in public. This is despite the ANC Constitution saying that only the outcome of the process will be communicated. Even after the public communications of the outcome, members of the NDC continue to leak misleading information with a clear purpose and intention to discredit witnesses who came to testify for the leadership of the ANC Youth League. The leadership of the ANC YL first heard of the charges from Journalists who were given off-record briefings by senior leaders of the ANC.
Some of the Sunday Newspapers already have access to the transcripts of the entire hearing process, despite the fact that there was no agreement to release the transcripts. The ANC YL does not have a problem with making the entire transcripts public information, because that way, members of the ANC and South African society will realise the vindictive intentions of the NDC. As things stand, the ANC YL leadership is subjected to an unfair, immoral and unprincipled public trial, which is clearly orchestrated by some members of the NDC who leak information selectively.
Already on Monday, the 14th of November 2011, the ANC issued a statement claiming that "the process as well as the outcome of the recent disciplinary hearings enjoys the respect and acceptance by all leaders of the? ANC? and members". This is despite the fact that the leadership of the ANC was not granted an opportunity to discuss the disciplinary process, but also this compromises members of the NDCA, who are leaders of the ANC and should preside over an appeal process.
The ANC Youth League NEC is of a reasonable and justified conviction that the entire process of the disciplinary proceedings of the ANC was politically motivated and meant to resolve political struggles and battles within the ANC. Some in the ANC, believe that by removing certain leaders of the ANC YL, they will successfully suppress and undermine the political and ideological struggles of the ANCYL, particularly on Nationalisation of Mines and Expropriation of Land without Compensation.
There is no consistency of discipline in the ANC, because if there was any form and sense of consistency, there have been disrepute brought to the ANC and no one acted. If there was consistency of discipline in the ANC, those who attend and address meetings of the ANC under the influence of alcohol and some of those who got arrested for drinking and driving should have been subjected to a disciplinary process and hearing.
The leadership of the ANC Youth League will always subject itself to the discipline and Constitution of the ANC, and such should not be misinterpreted to say that individual members can extend the Constitution to dovetail their political agendas and narrow selfish interests. We will never agree to anything that violates ANC Constitution in order to manage different interests.
The NEC has decided that the officials of the ANC YL and Cde Shivambu should appeal the rulings of the NDC. The NEC wishes to assure the members and supporters of the Youth League that nothing in the arguments of the NDC is unanswerable and that on appeal the arguments of the NDC will be dealt with including its main argument that the institution of the proceedings by the Officials was justified under the ANC Constitution because the officials are a structure. The 52nd National Conference of the ANC in Polokwane rejected the notion that officials are a structure when discussing the issue of 50% women representation in the NEC and other structures of the ANC. Should the views of the conference delegates be preferred over those of less than six NDC members, as should obviously be the case, then all the charges will be nullified because all the charge sheets make it clear that the charges were instituted by "the National Officials exercising their right, under Rule 25.3". That rule does not confer such a right on "the National Officials", sometimes loosely referred to as the "Top 6" in the ANC or "Top 5" in the ANCYL.
As a disciplined force, the ANCYL will follow all the internally available remedies afforded by the ANC Constitution and the Constitution of the Republic of South Africa, which was also mainly crafted by the ANC.
The immediate task is to ensure that our right to present mitigating circumstances is immediately restored, either by nullifying the entire proceedings or, at worst, remitting the hearing of mitigation to a properly constituted NDC.
This call is made against the background that the ANC Constitution clearly provides for an appeal "against conviction or sentence". This right of appeal against sentence would be rendered empty, hollow and meaningless without the right to lead mitigation. Elsewhere, the ANC Constitution also says that a member may appeal "14 days after the date of sentence". This also shows that a separate sentencing procedure is envisaged after the date of conviction. The wisdom of the conference delegates who decreed these very clear and specific safeguards must be assumed and taken for granted by all who believe in democracy and the potent slogan that "the people shall govern".
In any event, even the apartheid courts, which sentenced Cde Nelson Mandela and Cde Solomon Mahlangu, granted those heroes their right to lead evidence in mitigation, albeit not listened to. Even Eugene de Kock and Janus Walus were afforded this right. What logic would inform Cde Derek Hanekom and company to deny such a basic right under the ANC Constitution, even if that constitution was silent on the question, which it is most certainly not? Certain basic rights, such as the right to call witnesses, to cross-examine the other sides` witnesses, etc, are so basic and fundamental that they need not be spelt out. They can only be excluded clearly and expressly. Even so, such an exclusion would offend against section 34 of the South African Constitution.
We call on all those who love democracy and are not fearful of dictatorship to support, in principle, the ANCYL`s petition to be afforded the right to mitigation before such harsh punishment can ever be implemented because this has potential to create wrong precedence in society. This should be so even in the unlikely event that the convictions could be sustained on appeal.
Only the wilfully blind can believe that this matter is purely about discipline and not intended to settle political scores or to stifle debate, as specifically prohibited by Rule 25.2 of the ANC Constitution. Our principal aim is therefore to bring home the reality that the solution to those political problems does not lie in the NDC but in a proper political solution which must be sought as between the complainants and the respondents. Anything else will result in the disintegration of our beloved organisation, which is the last hope for the majority of our people who remain in economic bondage even after the attainment of political freedom and the vote.
The ANC Youth League will be going to the 53rd National Conference of the ANC and as true to its traditions, the issues raised will never change, and will take centre stage towards and in the Conference of the ANC.
- Economic Freedom in our lifetime
- Organisational autonomy
- Generational mix and the opening date for the succession debate
- Nationalisation and land restitution
- The African agenda, including the situations in Libya, Ivory Coast, Somalia and Botswana
- Abuse of state institutions as a tool to silence legitimate dissent
- The demon of tribalism
- Unity and discipline during the build-up to the Mangaung Conference in 2012
- Organisational renewal for the second century of the ANC
There can be no shortcuts, such as high-handed disciplinary banishments, to resolve the real political problems. 2012 should mark an unprecedented overview and rebirth of our ANC to race the challenges of this and future generations of South Africa and the African continent as a whole.
The leadership of the ANC Youth League would like to thank all people who have assisted and given support thus far. We thank our representatives, Comrade Patrick Mtshaulana, Cde Dali Mpofu and Cde Clifford Motsepe. We also thank many Advocates and Senior Counsel, who gave advises and showed interest to defend justice and fair process in the ANC, but could not actively participate due to other commitments. These are cadres of the ANC, who chose to defend principle against threats that they will not get work from government and other public institutions.
We want to thank all comrades who came in as witnesses to come and defend principles of the ANC and its relationship to the ANC Youth League. The following comrades played a critical role-Cdes Winnie Mandela, Tokyo Sexwale, Fikile Mbalula, Zamani Saul, Rapu Molekane, Gessler Nkondo, Vuyiswa Tulelo and all those who gave useful inputs and advices on how best we defend the African National Congress. We also want to thank fearless fighters and forces for progressive change who are not easily intimidated by anything that seeks to undermine the African National Congress.
We want to thank members and structures of the ANC, ANC Youth League and alliance partners who stood firm and openly supported the ANC YL leadership during these difficult times of political persecution. The messages of support we received from traditional leaders, church leaders, Non-governmental organisations, international and global progressive organisations and individuals are appreciated. Most importantly, members and of South African society who openly associate with the struggles for economic freedom in our lifetime are highly appreciated and we would like to assure you all that our struggles will never be undermined. Victory is certain.
In the 100 years of the existence of the ANC, there has never been a more crucial time to defend our organisation, its constitution and its membership. The unfolding new struggle for economic freedom demands of us to stay resolute and unshaken.
Our battle cry is "Unban the Youth League! Defend the Voice of the Voiceless!"
Issued by the ANC Youth League