Opinionista John Clarke 22 September 2014

Listen up, Honourable Members: How the e-toll review process is reinventing democracy

Had Sanral CEO Nazir Alli really understood the process of how human rights acquire meaning, Sanral would not now be sinking ever deeper into a crisis of credibility over e-tolls. Likewise, had the Executive under President Zuma understood the difference between authority and power, his government would not be sinking ever deeper into a crisis of legitimacy. Can Premier David Makhura’s E-toll Review save Sanral from itself, and in the process help re-invent democracy so that the people in fact govern?

Last Tuesday afternoon an engrossing ‘Reality TV’ drama was unfolding in Cape Town. I had to tear myself away to rush to Braamfontein to observe the public engagement session between Gauteng Premier David Makhura’s e-toll review panel and Joburg residents. The TV counter-attraction was a fascinating spectacle on a channel that normally features humdrum “dog bites man”-type stories that are really only of interest to the particular man and perhaps the owner of the dog. The media had informed us that the channel promised an exceptional and newsworthy “man bites dog” episode instead. That forecast was conservative. An escalating dog fight was unfolding. More dogs were joining in the fight, drawing more fight out of the dogs already in.

The arena for the dogma-eat-dogma battle was the National Assembly. At issue was the conduct of the Alpha female of the ANC (the National Chair) in her capacity as the Speaker of the House. A motion of no confidence had been brought by opposition parties who were ganging up to have Baleka Mbete displaced as Speaker because she had allowed her interest in maintaining power to conflict with her duty to exercise proper impartial authority.

With my nerves still frayed by the bloody reality spectacle occurring in Cape Town I arrived at the Braamfontein Recreation Centre to enter a packed hall that was, in contrast to the National Assembly, as peaceful and composed as a monastery. There was respect, decorum and civility. When the quiet and dignified chair Prof Muso Nkondo rose to welcome us, I half expected him to sound the first bars of a Gregorian chant.

Ok, I exaggerate, but the point is made. There was a surprising difference in the two instances of democratic discourse. Given the many common ingredients (a very controversial issue; roughly the same number of people in each room; representatives from a range of political parties present; considerable media interest;) one would have expected an equivalent level of raucousness and verbal bloodletting.

Why was that not so?

I could be sarcastic and say that the political parties present in Braamfontein had been unburdened of their sharpest fanged top dogs by having already sent them off to Cape Town for the National Assembly dogfight. But it is probable that had Sanral CEO Nazir Alli and his media wingman Vusi Mona been present at the Braamfontein event, it might well have approximated the chaos that was reigning in the National Assembly event. Many contributors ventilated feelings of anger and resentment toward the absent officials, but since they were not there to receive them, there was no point in projecting the fight onto the panelists. Still, nobody interrupted or insulted the single advocate for e-tolling – a brave pensioner from Bryanston who offered himself as a target by articulating a defence of e-tolling, admiration for Mr Alli and scepticism of Wayne Duvenage’s credentials.

Two qualitative differences might explain the stark contrast between the unbecoming goings-on in Parliament and the constructive civility of the Braamfontein public engagement event: firstly different fundamental assumptions as to how human rights acquire meaning, and secondly a different ordering of priority between authority and power.

Meaningful human rights. The dynamics of the Braamfontein event suggested an implicit commitment by participants to actualise human rights as interpersonal values. The dynamics in Parliament suggested a nominal compliance (at best) with the Bill of Rights as juridical constraints. In Braamfontein the right to freedom of expression was encouraged. Participants did not interrupt while people were speaking. In Cape Town the speakers could hardly speak amid the interruptions. Freedom of expression was constrained in the clamour.

I was glad not to be dissembling among politicians in the House of Assembly. Far better to be re-creating with fellow citizens in the Braamfontein recreation centre.

After listening to the brave Bryanston pensioner’s defence of e-tolling, his mistaken assumptions and lack of information prompted me to exercise my rights to free association and freedom of expression while simultaneously satisfying his right of access to information. I associated myself alongside him to whisper into his hearing aid some information about Wayne Duvenage. It left him a trifle nonplussed but not publicly shamed and insulted.

When panelist Prof John Ngcebetsha invited participants to share any information they had from personal experiences of Sanral’s past public consultation, I volunteered mine. It was an invitation to let my straining hobby horse out of its stable, in service of the right of access of all others present in the hall to certain relevant information I had acquired after months of dogged research.

“Mr Chair. Yes, I found evidence of notional compliance to Sanral’s consultation obligations. Six newspaper adverts inviting comments and objections to Sanral’s intention to have the Minister of Transport declare the Gauteng freeways as toll roads. But well camouflaged in obscure places. What I also found was a pattern of Mr Alli using ‘lawfare’ tactics to circumvent Sanral’s obligation to meaningfully consult.”

I told of Judge Phineas Mojapelo’s 2006 judgment which had acquitted a Mpumalanga farmer who had been criminally charged for refusing to pay toll at Nkomati Plaza while going about his work to deliver his produce to market.

“Between that judgement and the sudden appearance of the gantries in 2010, Sanral’s ‘consultation’ program shows absolutely no evidence of having learned anything from Judge Mojapelo’s careful effort to educate them.”

(Audience interest is palpable. I rise in the saddle. Hobby horse moves from walk to trot)

“The terms of reference of the review panel may seem narrowly constrained to assessing the socio-economic impacts of e-tolling. However there is a vital and indissoluble link between long-term economic prosperity and a genuine proactive commitment to human rights.”

(Encouraging nods from Professor Nkondo and other panelists. I break into a canter).

“My fundamental objection to Sanral’s imposition of e-tolling is that in failing to consult before declaring freeways as toll roads, the right of freedom of expression of the users were violated. Now that the gantries have gone live our right of access to information is being grossly violated.”

(A bold statement. On the canter I decide an example is important.)

“Last week Vusi Mona said that all the necessary information about e-tolling was freely available. This afternoon a Masters student from Wits called me for help with her research project into e-tolling. She had been trying for days to get the information out of Sanral, but in frustration was turning to the Opposition to e-tolling for reliable information. How absurd is that?”

(Chair waves hobby horse to the finish line. Breaks into a gallop down the final stretch.)

“In the political and constitutional hierarchy, yes, Minister Dipuo Peters may indeed have formal power over Sanral that the Premier of Gauteng does not. However that does not mean she also has the power to condone the violation of human rights. Human rights DO NOT belong to Government, they belong to people. We are not simply opposing e-tolls, we are claiming our constitutional rights.”

(Hobby horse crosses the finish line to public applause. Returns to stable. Point made.)

Power and Authority. Power was the issue of primary relevance to the parties in Cape Town whereas Authority was the issue of primary relevance to the citizens of Gauteng gathered in Braamfontein.

In contrast to the pleasing unanimity in Braamfontein, in Cape Town the National Assembly was fast dissembling into chaos with hobby horses and high horses running in all directions with no clear end or purpose in sight. MPs from the ruling party proposed an amendment to reverse the motion into a hollow vote of confidence instead. The Official Opposition opted not to even vote and walked out, leaving but a smattering of opposition votes to be recorded on the tally. Baleka Mbete still had power, but that did not give her the respect for her authority, vital to keep order in the house.

The majority party showed it was in truth, not a serving party as it should be but a ruling party.

Likewise Minister Peters has power over Sanral – a capacity of control, manipulation and coercion – that Premier David Makhura does not have. I believe Minister Peters’ professional and personal ethics do constrain her from using her powers manipulatively or coercively. Wisely, Premier Makhura has not sought to contest her powers of control in an unbecoming dog fight. He has instead worked to empower the Gauteng administration with authority – “the capacity of influence exercised by the person (or group) to whom legitimacy is granted because of recognised capacities and qualities” to quote my long-time mentor, the Chilean development economist Manfred Max-Neef.

Not having grasped the crucial distinction between power and authority, Sanral CEO Nazir Alli has compounded Sanral’s credibility crisis by firstly dismissing Premier Makhura’s initiative, and then run to hide behind the (alas, all too accommodating) skirts of the Minister of Transport. In supporting him Minister Dipuo Peters has put government legitimacy at further risk. Her bold statements of support provoked a strong backlash from all sides (including high ranking members of her own party apparently). Sanral changed tack, stating that they HAD in fact written an eight page letter to Premier Makhura to clarify their position and said they had requested an “in-camera meeting”. Vusi Mona said it “had been ignored”. The Premier’s office denied ever receiving such.

Which of the two officials of State should we believe?

“We fight for options” Max-Neef teaches. “However, when after opting, things do not work out the way we expected, it may be due to the fact that the chosen option was, without our being aware of it, of secondary relevance. This means that there must be (and we must look for it) an underlying option of primary relevance that has to be tackled first… The preoccupation as to who should be in power is [an] option of secondary relevance. The underlying question of primary relevance to be examined is what is the nature of power itself (my emphasis).”

Last Tuesday evening, reflecting upon the two nominally democratic events, that long-cherished insight suddenly became so brilliantly clear.

Driving home from Braamfontein I laughed at the idea that the parliamentary TV channel might have done the cause of democracy better by reversing the direction of the broadcast by filming the exchange between the panel and the people in Braamfontein, and broadcasted a live feed into the House of Assembly for the benefit of our honourable members of the (mad)house. They would not only have seen how to behave themselves, but also why Manfred Max-Neef concluded:

“Are things going wrong because it is the wrong group in power, or are things going wrong because there is something wrong with power? This question demands an answer, and the answer consists of deciding whether we are willing to substitute authority for power, and thus re-invent true democracy. Authority as here defined can only function on the Human Scale.”

For it is only in the human scale that human rights acquire lasting meaning. DM

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