Let's assume the Maori Party really wants Hone Harawira gone. What then?

Now that the Maori Party has decided to take Hone Harawira's case to a full Disciplinary and Disputes Committee meeting, I've been doing some thinking about how things might play out from here.

Ideally, someone would pay me $25,000 for providing this service, but as it doesn't look like that's going to happen you can have what follows for free. However, bear in mind that advice given at no cost is worth every penny, and that I have no special knowledge about what actually is going on within the Maori Party.

That said, it seems to me there are five possible outcomes from the Committee process.

  1. The complaint is dismissed altogether. This seems to me the least likely result, given the investment that the party heirarchy has made in taking matters this far. If the complaint were now dismissed in its entirety, it would be the equivalent of an endorsement of Harawira's basic position and a repudiation of the existing leadership.
  2. The parties reach an agreement on the complaint, with some sort of apology on Harawira's part and a commitment from the rest of the Party's MPs to rebuild bridges. I guess this re-run of 2009 remains possible, but given the increasingly strong rhetoric from Harawira's corner I don't think it likely he is going to back down this time. After all, he not only thinks he is right, but that he is speaking for the bulk of the party membership - so exactly what is there for him to apologise for?
  3. The Committee recommends to the Party's National Committee that it issue a rebuke to Harawira, but nothing further. In other words, he gets slapped with a wet bus ticket. Again possible, but not only would it be an admission of weakness on the party heirarchy's part, it  also would postpone the day of reckoning as Harawira continues to critique the party's actions.
  4. The Committee recommends to the Party's National Committee that Harawira be suspended from the Party, subject to future good behaviour. Two problems with this. First of all, it isn't clear that such a power to "suspend membership" exists under the Party Constitution. Possibly it is implied - if you can expel someone (see below) then you can put their membership on hold for a period. Second, it again postpones what may be inevitable. For if Harawira is true to his word, he will not stop the sorts of criticisms that he's made to date.
  5. The Committee recommends to the Party's National Committee that Harawira be expelled from the Party. It has the power to do so clause 3.7 of the Party Constitution: "The National Council may decline or cancel any membership that the Council believes does not meet the criteria outlined in clause 3.1."

As may be clear from the above, I think the fifth outcome increasingly is the most likely to occur, bar some major backdown from one side to the dispute. However, there is an immediate  roadblock to any expulsion (or any other sort of action) actually taking place. Under the Party Constitution; "All decisions of the National Council shall be by consensus. (Consensus may be defined as a process of ‘whakawhitiwhiti whakaaro,' To arrive at an outcome at which those present, are accepting')."

And under cl.4.2(b), each electorate is entitled to place up to 4 members on the National Council. Now, I haven't been able to find a list of National Council members anywhere, but if Te Tai Tokerau does have up to 4 members on it, how likely is it they will agree to expel Harawira from the Party? And if they refuse to go along with this action, then under the Party Constitution the National Council cannot act.

So does that mean Harawira is safe? Well, maybe not. For one thing, the rest of the National Council may decide that due to "conflicts of interest", the Te Tai Tokerau electorate members may not participate in any decisions relating to Harawira. There is no specific provision in the Party Constitution permitting such a step, mind you, but perhaps one might get implied in so as to be consistent with "natural justice".

For another, cl.4.2(d) states that: "The management of the Māori Party, on behalf of the National Council, is authorized and determined by the National Executive." This smaller body "comprises [the] Party President; two Co-Vice Presidents (one tāne and one wahine) and two co-leaders (one female, one male)." Might this National Executive decide to exercise the National Council's power to expel as a part of its overall "management" of the Party?

Either step would be risky - it's the sort of procedural move that a court might get very interested in down the track. But let's assume for the moment some such means of bypassing any Te Tai Tokerau resistence is found.

For things only start to get interesting at this point. Assuming Harawira is unhappy about being expelled - in other words, let us take him at his word that he wishes to remain in the Maori Party - what then?

Well, one possibility would be to go to court and seek an injunction to prevent the expulsion on the basis that a breach of process occured. Both sides are acutely aware of this avenue - consider how Harawira is keen to decry the Party's failure to follow "natural justice", while the Party is just as keen to underline how careful it is being to abide by it. Oh, yes, and they are paying Mai Chen $25,000 to make sure they get it right.

My gut feeling is that legal action might not help Harawira much, based not only on previous precedent (Peters v Collinge and Roger Payne's various cases) but also on the very vagueness of the Constitution itself. In other words, this document is so full of general principles - and principles reflecting a Maori worldview at that - I just can't see a judge being prepared to step in and tell the Maori Party "sorry ... I know better than you do how these principles apply in this particular case."

An abuse of process is another matter - but because it isn't clear exactly what process will get followed, I can't speculate too much on that.

However, there's another path open to Harawira. Because under the Party Constitution, a person who is expelled from the Party "may appeal that decision at the next National hui of the party where the decision shall be final."

Now, under clause 7.1, the next annual National Hui doesn't have to be held until 1 November 2011. But under clause 8, "The [National] Council may call a special National hui at any time and shall, at the request of three electorates or by request of at least 200 financial members from each of three Electorates."

In other words, if Harawira is expelled, he only need find 200 supportive members in three electorates prepared to request a special National hui to consider his expulsion and that hui must be held. How, then, would that hui operate and how would the expulsion decision be considered at it?

Well, again the Constitution is really hazy on such questions. For one thing, it says nothing about how quickly such a special National hui must be called. For another, it says nothing about who is entitled to attend it. Is it all members? Is it only delegates; and if so, how are they selected?

Second of all, the Constitution states that decisions at an annual National hui (and so, by implication, a special National hui) "... shall be by consensus (as defined in 4.4 above)." Going back to clause 4.4, we find "(Consensus may be defined as a process of ‘whakawhitiwhiti whakaaro,' To arrive at an outcome at which those present, are accepting')".

If we take this literally, then it gives every Party member attending the National hui a potential veto over every decision at it. And in particular, it gives the Party leadership a veto over any challenge to their decision to expel Harawira from the Party. Which means the safeguard of appealing an expulsion at a National hui is pretty useless - you'd have to get the party leadership to admit they were wrong and agree with the rest of the hui to rescind the decision.

Unless, that is, natural justice again kicks in here. Because of this conflict, could it be argued that those involved in any decision to kick Harawira out of the Party are not permitted to participate in any National hui considering that decision? In which case, would the National hui have to occur without the National Council's
participation?

All of which is very, very messy. And likely to keep providing lots of grist to the news mills for the months to come.

Comments (4)

by Kyle Matthews on January 30, 2011
Kyle Matthews

Once you get down to practicalities, a lot of constitutions stop to make useful sense. The reversal you've highlighted of the consensus at the two levels is a pretty obvious example.

I'm guessing if a reporter was to put this to senior members of the party, they'd get half a dozen different answers as to how this would, or wouldn't, work.

by Chris Webster on January 31, 2011
Chris Webster

Andrew:

This is not going to hurt you -- but there are other options -- and we're also not of a mind to charge you or for you to expect to be paid for our murmurings.

 

1. When it comes to Maori politics -- you got to think far / much more laterally! Especially if you are not of Maori descent.

2. Last week our cabal discussed similar ideas and agree that yes matters are getting bogged down -- but hey this is Maori politics!

Our option 6: If Hone and his electorate fans maintain the status quo – chicken little will be called in to write up the bottom line stuff and the how to ‘prevent future implosions’ – especially given this year’s election. He will lose and retire gracefully never to be seen again. Well if you believe that then you should visit Kansas - again.

Our option 7: Hone weary from constant pressure – will galvanise the nation - and throw open his window and shout in good Peter Finch style --I'm as mad as hell and I'm not going to take this anymore!’ – which could persuade all New Zealander’s to shout out of their windows – amine to that!

Our Option 8: And Hone being ‘as mad as hell’ takes the expulsion on the chin and splits: the Maori Party will have a hell of a fight with its kaupapa nation-wide if it kicks out the voice and the perpetrator of its genesis; given its dynamic strategic and political strength and dedicated follower of Maori Party fashion and manager for the Māori Party- Helen Potter – recently resigned because of the party’s failure to advocate for Māori rights. Now haven’t we heard that from some other mangai recently?

Option 9: And Hone still being ‘as mad as hell’ splits: his electorate becomes independent with him continuing as its MP. And it will be their Maori voice that Hone campaigns on and represents. And life will continue in the similar themes we have experienced these past weeks – now Kansas is really looking attractive!

Now lets line up the ducks. There are 7 Maori electorates – 5 of which are currently held by the Maori Party – well if one green/bottle purposely falls (and we think that is what is going to happen) is that the tipping point?

The Maori Party campaigns/promotes itself as being the only Maori voice in House of Representatives. How Maori is that voice if it is weakened or silenced by the pressure of obedience to the cabinet manual? How Maori is that voice when the mana-enhancing agreement is seen by all as a piece of fluff? How strong is that Maori voice when other Maori electorates consider the shift to another paradigm?

Will Maori voters really accept that the Maori Party is the only Maori voice in the parliament if other voices much more Maori gain a foothold? Will Hone’s shift to being an independent MP of an independent Maori electorate be the tipping point for other Maori electorates to chance their arm?

The obedience by Maori to Labour or National is weakening. They’re part of a numbers game. That’s all. Nothing more, nothing less. Even Hekia Parata says she is not at the Cabinet table for Maori – she is there as an MP for National. She just happens to be Maori and her voice is bilingual and makes no apology for her choices or decisions – well said. Labour thinks Ratana people vote by instruction. Do they? In the 1995 Waikato settlements talks it was suggested by some that people would only benefit from the settlement if they were on the Maori roll. Excuse me? Kansas – here I come.

Oh - this link has just been sent to me: http://news.tangatawhenua.com/?p=9695 – similar thoughts from other Maori voices and minds – spooky.

by Andrew Geddis on January 31, 2011
Andrew Geddis

Chris,

1. Like I say upfront, " I have no special knowledge about what actually is going on within the Maori Party." Same goes for Maoridom as a whole - so I stuck to what I know and what people are publicly saying. Trying to "think laterally" when you aren't sure about your subject matter is tricky!

2. If Hone is kicked out/walks out and is prepared to go it alone, then there are untold permutations. But he says he doesn't want this - so again I kept my speculation within the bounds of what he says.

But thanks for your thoughts ... and for that link. We live in interesting times ... .

by Bruce Thorpe on February 01, 2011
Bruce Thorpe

Hone will not give up the Maori Party willingly, in a time when a trade mark and logo are more valuable than the design and manufacture of a product.

At present Maori and Green parties have the best trade names in the business, but after Key, Harawira has the next most marketable personality.

I do not think Turia can win this campaign, but of course it is possible there will be no winners. Over the years Harawira provocations have not always had clear outcomes.

She had something of  this in mind when she used the term "Haters and wreckers."

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