Day two of the National Conference on the Constitution began with a plenary discussion on “the effectiveness of the legislature in advancing constitutional democracy” between the co-chairperson of the Constitutional Review Committee, Dr Mathole Motshekga, and Dr Mosibudi Mangena, a board member of the Mapungubwe Institute for Strategic Reflection. 

“Parliament has failed or neglected to execute its duty of working using political freedom to attain socioeconomic freedom for South Africans because it is not only a custodian of constitutional values but it is also responsible for the realisation of these values,” said Motshekga. 

He blamed the failure of Parliament on the multiparty system, which he said was being used to “derail” Parliament because opposition parties sought to use the judiciary to “usurp” Parliament’s powers, which resulted in the government spending money and resources on court cases to defend itself from opposition parties. 

Motshekga said opposition parties used their “freedom of speech and motions of no confidence” to derail Parliament. “Parliament is being abused by the opposition,” he said. 

“The country is not able to move forward because of the multiparty system… government is being failed by people in Parliament who are there for their stomachs and not the interests of South African people,” said Motshekga. 

He pointed out that the Preamble to the Constitution says: “‘We must address the injustices of the past, colonial conquest and violent dispossession of land and natural resources.’ Parliament needs to spell out this injustice and come up with a plan to address it and it hasn’t been able to do this because of opposition parties.” 

Mangena told the audience: “At a formal level, Parliament is functional and has been passing laws and practising its oversight role and the laws have been legal and constitutional.”  

He said whenever laws being passed were found not to pass constitutional muster, the courts stepped in for the laws to be revised and fixed.  

However, Mangena bluntly stated that he regarded Parliament as the weakest of the three arms of the state, which he said was largely due to its own doing. He listed three reasons:

1. There is too much litigation relating to Parliament which is mainly on procedural matters or rulings by presiding officers. If one arm of the state was seen to be incompetent, it “invited interference from other arms. There is a fear that the judiciary might be overreaching, but if it is invited it has no option but to play its role.”
2. The oversight role has been conceived as timid, weak and ineffective. The executive, in particular, has simply ignored pronouncements on its oversight role and the wrongs pointed out by Parliament are ignored by the executive. “We have seen when wrongdoing is presented to Parliament it mounted a spirited defence of the executive.” Mangena said that reports by the Public Protector on state-owned entities such as Eskom and SAA  were simply brushed aside until the Zondo Commission was established.
3. The chaotic nature of parliamentary proceedings, including violence and insults: “might be entertaining to some but it doesn’t advance the constitutional democracy. Yes, Parliament must be vibrant and have contestation, but not what it is now. It’s meant to advance democracy and must set a tone in the nation that contestation must be within a democratic dispensation without intimidation.”

The role of the judiciary

A recurrent theme at the conference was the role of the judiciary in advancing the principles of the Constitution. 

“South Africa must be very careful when we deal with the transformation of this tier of government, must remember that of the three separate though equal tiers, the judiciary has the ultimate obligation of dealing with interpreting the law. There’s an amount of care the judiciary should put into whom they entrust with the foundational values,” advocate Dumisa Ntsebeza told attendees.  

“We need to make sure that our judges have got the independence that they need in order to discharge their responsibilities.”  

Justice Albie Sachs said that as one of the first Constitutional Court judges in 1996, “For me, no one had a greater sense of justice than [the then Chief Justice] Pius Langa. We were very strong ideologically and intellectually… and I feel even now we have a very strong Constitutional Court.”  

Human rights in the region and Africa  

The conference also heard of South Africa’s human rights reputation in the continent and the SADC region, in particular. Professor Frans Viljoen from the Centre for Human Rights at the University of Pretoria said that despite having the most progressive outlook on human rights in Africa, South Africa was not always strong in defending the principles of human rights across the continent.  

Viljoen pointed specifically to the right to sexual orientation, which is contentious on the continent, and the issue of how to deal with the phenomenon of statelessness, saying that South Africa had not supported a draft protocol on statelessness currently being considered by the African Union. 

“South Africa needs to give moral leadership and show that African institutions can be effective,” said Viljoen. 

Rita Ozoemena, an associate professor at Unisa, was less critical and said that South Africa had “paved the way for the promotion of socioeconomic rights” in the region. Ozoemena explained that the right to vote was not specifically guaranteed in most African Constitutions, while South Africa’s Constitution explicitly guaranteed this right. 

She highlighted that South Africa has had six elections, all of which were without violence, unlike in Kenya, Zimbabwe and Nigeria, and that we did not have a culture of “presidents for life” creating a situation of “presidential monarchies, as can be seen on the continent”. 

“South Africa is a beacon of hope when it comes to elections on the African continent… I hope that in South Africa we do not take the right to vote for granted,” Ozoemena concluded. DM/MC