opinionBy Paul Hoffman
The leaders of COPE, the new breakaway movement from the ANC, have been busily formulating the policies of their fledgling party and will present them in Bloemfontein to the first congress of their followers on 16 December, an historic date.
Their task is complicated by the unhappy reasons for existence of our newest political party. Judging by the turnout at the recent national convention in Sandton organised and paid for by its leaders and sponsors, much of its initial support emanates from disaffected ANC supporters who, for a variety of reasons, do not see their way clear to continuing to support the ANC.
Being a breakaway movement of leaders who have in the past aligned themselves with the line taken by ex-president Thabo Mbeki has its challenges. Quite apart from the arms deal, the HIV/Aids debacle, the soft approach to Zimbabwean excesses which has led to a meltdown there and the "Stalin-lite" management style of Mbeki, there are constitutional issues of principle that need to be addressed boldly by the leadership if it is to succeed in distinguishing itself from the ANC and the DA, its two main adversaries in the competition for votes.
The amount of support which COPE draws at the polls will be a litmus test of how well it carves out a space for itself and where exactly in the spectrum of political choices it positions itself. Pundits suggest that its support could be anywhere in the range between 5% and 20% of the popular vote. If most of this support is drawn from the ANC, then COPE may be well placed to hold the balance of power in some provinces and to challenge for control of the country after the 2014 elections. This has the potential to end the political dominance of the ANC that has led to some describing South Africa as a one-party state in the past, and thus open up democratic space and create improved levels.
A new era of coalitions and alliances may dawn, enhancing our non-racial non-sexist national aims and objectives.
The constitutional issues identified for consideration at the national convention make up a promising list. They raise questions which the COPE policy makers must now answer.
Firstly, the disbandment of the Scorpions was criticised. Will COPE commit to reinstating these well organised crime-fighters?
This is a constitutional issue: the dissolution of the unit has justifiably been described as an attack by the ANC on the rule of law - an attack which is irrational, structurally unsound, unfair to individual Scorpions, procedurally flawed and in conflict with the country's international obligations.
So a big yes to keeping the Scorpions will show a stronger commitment to the rule of law and the fight against crime than is evident from the side of the ANC. This will also impact on the arms deals and allegations of corruption swirling around them. Will COPE support the widely demanded judicial commission of enquiry? It might even win Desmond Tutu's vote for taking up this position.
Secondly, COPE has raised issues surrounding the independence of the judiciary and other state institutions such as the prosecuting authority. Does COPE plan to assist and protect the integrity of the judiciary? Will it formulate an exit plan for Judge John Hlophe?
Will it respect the constitutional imperative that the prosecutors be allowed to work "without fear, favour or prejudice"? Will it allow Chapter Nine institutions like the Public Protector and the Human Rights Commission to function independently of the party line?
A substantiated "yes" to these four questions would indicate a readiness to allow checks and balances on the exercise of power that the ANC has not countenanced in the Mbeki era.
It would signal a genuine desire to see constitutionalism succeed through the limitation of power, which is exactly what our national accord promised but has not really delivered in recent years.
Thirdly, COPE has criticised the ANC's political intolerance and unnecessary revolutionary war talk accompanied by violence and declarations of "no go" areas for its political opponents.
These are all manifestations of the inappropriate desire for hegemonic control espoused by the ANC. Will COPE rubbish the ANC's National Democratic Revolution? Will it, like Kadar Asmal, treat it as an outmoded form of thinking that has no place in a multi-party democracy in which the yokes of colonialism and apartheid are actually history? (except perhaps in the wide eyed imaginations of the likes of Julius "kill for Zuma" Malema and Gwede Mantashe who has been heard to call judges "counter-revolutionaries.")
Will the ruling alliance be directly challenged to identify who the adversary in their "revolution" really is and what they plan for that adversary?
Will COPE ask how the ruling alliance can actually call itself revolutionary when the existing order it seeks to revolutionise is actually one to which it has solemnly agreed and in which the universally praised and widely accepted Constitution is the supreme law?
Can COPE shake off the revolution-speak shackles and actually embrace constitutionalism in both word and deed? What will it do about its followers who are reciprocating in kind to the ANC thuggery of which it complains?
How exactly will it accommodate the well-known communists and trade unionists in its midst? If these issues are fudged, then the appellation "ANC-lite" may stick; if they are openly confronted and dealt with, COPE has a better chance of distinguishing itself from the Zuma-led ANC on the basis of principles and not personalities, policies and not past disappointments.
COPE has deplored cadre deployment and undemocratic practices by the ANC. What will it actually do about cadre deployment in the public service?
How will it restore proper order in the health, educational and security services? What steps will it take in the months ahead to deal with mayors who think they own town halls, with ANC supporters who think they own voters and with those "tribalists" who proclaim "no go" areas? The unveiling of a constitutionally-compliant strategy to deal decisively with these phenomena would be an impressive achievement for COPE. Mbhazima Shilowa said at the post national convention press conference: What counts is not what political parties say about the Constitution, judge them by their actions.
The time for judging COPE by its policy positions, especially on the economic front in these times of global financial crisis, is near. It has the advantage of a clean slate; the disadvantage of disgruntlement. How it handles its own relationship and commitment to the principles of the Constitution is the real litmus test. If COPE stands firm on the latter there is a better prospect for a successful future for it. If not, it may be nothing more than a passing fad.
Paul Hoffman, SC, is director of the Centre for Constitutional Rights in Cape Town.