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24 November 2014 10:53 (South Africa)
Opinionista Pierre de Vos

Chaskalson, SACP and the Constitution: Don’t touch me on my liberalism

  • Pierre de Vos
The bizarre and, quite frankly, often uninformed speculation by some of the so called doyens of South African “liberalism” – including Tony Leon, Ken Owen and RW Johnson – that former Chief Justice Arthur Chaskalson might have been – gasp! – a member of the Communist Party and that he might be to blame for some of the alleged design flaws in our Constitution, says more about the sad state of a certain version of liberalism in South Africa than it says about any faults on the part of either Chaskalson or the Constitution.

I have no idea whether Chaskalson was a communist or a so called “fellow traveller”, as RW Johnson (as usual relying on gossip instead of on facts) suggests. Quite frankly, I could not care less (although, perhaps unreasonably, I tend to believe the denials of Chaskalson and of all those who knew him well, rather than the contrary speculations of those who have an ideological axe to grind). I imagine Chaskalson would have been amused by the paranoid speculation that he was a communist, but he would have been deeply offended by the suggestion that he lied about it.

Others, I am sure, will continue to point out the many factual errors in the arguments of Leon and his fellow travellers and will continue to demonstrate why this whole debate about Chaskalson’s previous political affiliations is utterly irrelevant, both when considering Chaskalson’s legacy as a jurist and in evaluating the alleged flaws in our Constitution. 

However, there is one specific argument, raised by Ken Owen, with which I would like to take issue. Owen criticises the Constitution because it has resulted, he claims, in a system in which “government and Parliament are answerable not to the people but to Luthuli House”. He continues:

“The sovereignty of the party, the bunkers and armed guards that protect leaders from people, the burgeoning kleptocratic state, the subservient Parliament, the party-assigned civil servants and commissars, are all features which make South Africa very similar to the Soviet Union, and many South Africans now believe we are heading for a Soviet-style collapse. How did this happen? Did Judge Chaskalson plan it, or blunder into it? Did he have another agenda? Amid all the indignation, the necessary debate on how we landed in this mess gets nowhere.”

Setting aside the rather overblown rhetoric for the moment, I find Owen’ reasoning a bit muddled. However, I will give Owen the benefit of the doubt and assume that he is arguing that the Constitution has created a “Soviet-style” system of party government, partly because of the pure proportional representation electoral system and partly because the Constitution has allowed ANC members of Parliament and ANC leaders in government to show more loyalty to the ANC leadership in Luthuli House than to the state or to the electorate. Moreover the Constitution is said to have allowed civil servants to be loyal to the ANC instead of to the Constitution.

Unfortunately these arguments are parochial, uninformed and a-contextual, seeking to blame the Constitution for the failings of the political process. What Owen does not understand is that one cannot judge the text of a Constitution in the abstract and that such a text will operate differently depending on the political context. 

Yes, our political system is not working as well as it could. Yes there has been a problematic blurring between the ANC and the state. Yes MP's are not as accountable to voters as they should be. Yes, the civil service has been politicised. But to blame the Constitution for these failures would be like blaming the weatherman for a heat wave. 

There are many democracies in which some version of our electoral system are in use. In a recent survey Norris pointed out that 57 of 150 countries surveyed had a proportional representation electoral system like South Africa. In some of these countries – Norway, Finland, The Netherlands, and Italy – the party list are open and voters can vote for their preferences of representatives on party lists. In many other countries – Israel, Portugal, Spain, and Germany – lists are closed as in South Africa and voters can only select the party, and the ranking of candidates on the party list is determined by the political party. Somehow none of these countries are said to be heading for a “Soviet-style collapse”. This is because electoral systems do not cause the pathologies set out above. The political dynamics in a society plays a far bigger role in determining whether MP's will be accountable or whether the civil service will become politicised.

It might well be that an electoral system in which a large number of MPs represent individual constituencies stands a better chance of weakening the power of party bosses and increasing the accountability of MP’s to voters than the system currently in place in South Africa. But an electoral system on its own cannot guarantee accountability. Even in countries where the electoral system allows voters to elect their representatives directly, this choice is often illusory as candidates are often imposed on voters by the political parties who dominate specific geographical areas. 

In South Africa, at local government level, half of all elected representatives stand in individual constituencies, but by and large this has not weakened the power of party bosses to impose discipline on their cadres and to control ward councillors. It has also not made ward councillors particularly accountable to voters - as widespread service delivery protests at local government level have shown. This is because the political parties still choose the candidates to represent the respective parties in each ward. The ANC, for example, exercises considerable power over those ward councillors who might think of defying Gwede Mantashe or Jacob Zuma - even though the ward councillors were directly elected by voters. Just wait and see what will happen to the ANC councillors in Thlokwe whose political stunt led to the election of a DA mayor in that town. I guarantee that the political careers of most of these councillors will soon come to an end – unless they have a dramatic change of heart and do some serious brown-nosing of party bosses at Luthuli House.

Because of the political dominance of the ANC and the concentration of ANC and opposition voters in certain geographical areas, a purely constituency-based system is not going to change the political dynamics in South Africa in the near future. Because neither the candidate of the DA or any other party would currently stand much of a chance of winning an election in a constituency in Khayelitsha or Soweto (just as the ANC will have no chance of winning an election in a constituency in Newlands or Houghton - given the fact that most white voters will never vote for the ANC), even in a changed system, the ANC and the DA party bosses would in effect still decide who represents us in Parliament, and the MPs would largely remain loyal to the bosses who selected them as candidates and not to us voters who voted for them because they represent the ANC or the DA.

Our problems relate to the consequences of one-party dominance. All the alleged ills referred to by Owen has just as much to do with the fact that the ANC has managed to convince the vast majority of voters that it represents their values and interests, as it has to do with the fact that the so called “liberal” opposition has so far failed to convince the majority of South Africans that it does not only represent the interests of the privileged white minority. The political problems we face – which can almost completely be ascribed to the lack of electoral checks on the ANC – are therefore arguably also caused by the ineffectual opposition, whose policies, statements or actions continue to alienate the vast majority of South Africans.

Because the ANC has dominated the lives of the vast majority of South Africans over the past 20 years, no Constitution in the world – at least not a progressive and democratic one – would have been able to prevent the pathologies associated with one party dominant democracy, including the politicisation of the civil service. Given the fact that 66% of voters cast their ballots for the ANC in the last national election (down from 69% in the previous election), and given the fact that opposition voters are disproportionately members of the professional classes, the civil service – at all levels – was always going to become staffed by a vast majority of ANC supporters.

Section 195 of the Constitution states that public administration must be governed by the democratic values and principles enshrined in the Constitution. These values include the need to retain a high standard of professional ethics and to provide services impartially, fairly, equitably and without bias; to be accountable. Despite these provisions, the political dominance of the ANC has inevitably led to transformation of the civil service from a pro-apartheid, National Party supporting institution, to an institution now dominated by ANC members or supporters. This would have happened no matter what was written in the Constitution. 

People like Leon, Owen and Johnson, who point fingers at Arthur Chaskalson and/or the Constitution, should rather look in the mirror and ask why the vast majority of South Africans would rather vote for the ANC (or increasingly abstain from voting) than to vote for the supposedly liberal DA. Could it be that Leon’s 1999 “fight b(l)ack” election campaign, as well as the strident opposition of people like Owen and Johnson to any forms of race-based redress measures, have so tainted “liberalism” in South Africa that the vast majority of voters, continuing to make rather rational choices, choose not to vote for or associate with the “liberal” opposition party so fatally tainted by the whiff of white arrogance and self-interest? DM

  • Pierre de Vos
Pierre de vos

Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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