You may have seen the news: the controversial High Court judgment that found in favour of Parliament’s broadcasting policy to censor ‘disruptive’ proceedings in the National Assembly is to be heard on appeal at the Supreme Court of Appeal in the coming months. Again the judiciary will be asked to weigh in on whether Parliament is doing its work within constitutional parameters.

Among those who have been openly critical of the judiciary is Police Minister Nathi Nhleko. He told senior managers from the Independent Police Investigative Directorate that there were “interesting” elements in the judiciary who “meet with characters to produce certain judgments”. He did not mention specific cases.

The unease felt at judges presiding over courtrooms where people can come and question state action is often expressed as a concern about the ‘separation of powers’.  It is a frequently asked question in Judicial Services Commission interviews, where aspirant judges are asked what they think of the separation of powers. They are often asked in such a way as to indicate that the correct answer is that the separation of powers is a good thing, and they generally oblige by saying that it is part of the Constitution.

What is really being asked, in my view, is what level of deference an unelected judiciary should show to the actions of an elected government? This assumes the traditional three arms of government – executive, Parliament and judiciary. The mantra, which I have repeated myself many times, is that the judiciary must not tread on the terrain of Parliament.

However, what if that analysis if fundamentally wrong? What if, in a participatory democracy, there is another arm of government, which is unmentioned in this  analysis?

Karl Klare, Matthews Distinguished University Professor at Northeastern University School of Law in Boston, speaking at the University of Stellenbosch law faculty’s annual human rights lecture, describes the idea of courts not being allowed to intrude on the terrain of government except when they give effect to the Constitution as ‘a vintage conception of binaries’. In his analysis, a ‘mobilised grassroots’ is another arm of government.  He takes the idea that ‘the people should govern’ pretty literally. The idea that government is actually by the people, and not only for them, is not often expressed as an actual truth. We usually understand ‘government by the people’ as a way of saying that you elect people, and they represent you. We don’t literally mean that the people govern.

Or do we? We have always understood that our Constitution does not require only that citizen’s vote, and go away, for democracy to happen. We talk about a participatory democracy, and we are certainly clear that lawful administrative action has a component of consultation in it. But this seems to be a step further than that – it proposes that ‘the people’ are actually part of government. The fourth arm, so to speak.

This idea is explained best in Doctors for Life International v Speaker of the National Assembly. Ngcobo J held that:

“Our democracy includes as one of its basic and fundamental principles, the principle of participatory democracy. The democratic government that is contemplated is partly representative and partly participatory, is accountable, responsive and transparent and makes provision for public participation in the law-making processes. Parliament must therefore function in accordance with the principles of our participatory democracy.”

J Sachs in an assenting minority said:

“The Constitution predicates and incorporates within its vision the existence of a permanently engaged citizenry alerted to and involved with all legislative programmes. The people have more than the right to vote in periodical elections, fundamental though that is. And more is guaranteed to them than the opportunity to object to legislation before and after it is passed, and to criticise it from the sidelines while it is being adopted. They are accorded the right on an ongoing basis and in a very direct manner, to be (and to feel themselves to be) involved in the actual processes of lawmaking.”

What practical implications does that have for the discussion about the separation of powers? Well, in some instances what the courts are doing is not interfering with the executive or Parliament, but rather finding in favour of, or against, a particular version of democracy, as to how the people’s voice must be heard. Of course, such judgments don’t always go in favour of the ‘characters’ that arrive in courtrooms, seeking to uphold the principles of a participatory democracy, despite Nhleko’s worst fears. In such a case, the Right2Know Campaign and the Open Democracy Advice Centre were two of the applicants in court to challenge Parliament’s broadcasting policy, which we believe allows for censorship of television coverage of events in Parliament.

This court action began after the state of the nation address in February, when Parliament’s television cameras were misdirected to prevent the public from seeing police coming into the National Assembly, and the State Security Agency deployed technology to ‘jam the signal’.

We argued that the manipulation of Parliament’s broadcast feed undermines the right of all South Africans to know what is happening in Parliament – good and bad. And, in this case, the ‘characters’ lost. In the Cape High Court Judge Daniel Dlodlo, for the majority, said Parliament has the right to regulate its own process and that managing the feed is not an unreasonable violation of the public’s right to know. He said: “I agree that the public has a right to know what is happening in Parliament, but that right is not absolute.” In a minority decision, Judge Kate Savage found that Parliament’s broadcasting policies are an unreasonable restriction of our right to know what happens in the legislature.

If we use Klare’s ‘four arms of government’ framing of the separation of powers issue, the judiciary is then not trespassing on the terrain of the legislature, but determining how the relationship between Parliament and the people must be shaped to give effect to the people’s right to govern. The judiciary is not deciding on whether the game is being played fairly, but on the fairness of the rules themselves. This can also be said of a number of other cases in front of the court of late, says Klare, including the question of how to table a vote of no confidence, and what speech is parliamentary. These decisions drill down into the type of democracy the Constitution demands, rather than being a check on the will of the majority.

The court has granted leave to appeal to the Open Democracy Advice Centre and the Right2Know Campaign, and the Supreme Court of Appeal will be able to chew this one over again early next year. If we, the people, are “accorded the right on an ongoing basis and in a very direct manner, to be (and to feel themselves to be) involved in the actual processes of lawmaking” how can it be that we all not be allowed be there, in so far as technology allows?

The notion of the people governing is always a challenging one, even if only through elections. Bertolt Brecht said it best:

After the uprising of the 17th June
The Secretary of the Writers Union
Had leaflets distributed in the Stalinallee
Stating that the people
Had forfeited the confidence of the government
And could win it back only
By redoubled efforts. Would it not be easier
In that case for the government
To dissolve the people
And elect another? 

DM