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Lessons from Cicero: How do we renew the colours of our Constitution?


Judith February is executive officer: Freedom Under Law.

This is a dangerous moment in the history of our democracy and not unlike the last heady days of the Republic. We might do well to heed the Ciceronian warning to “take the trouble” to preserve what we have despite its fading hue.

‘But though the Republic, when it came to us, was like a beautiful painting whose colours, however, were already fading with age, our own time has not only neglected to freshen it by renewing the original colours, but has not even taken the trouble to preserve its configuration and, so to speak, its general outlines…’

Cicero De Republica 5.1.2

Written between 54-51BC, Cicero’s De Republica was part lament for the state of the Roman Republic and part discussion of forms of government and justice. At that time, the Romans were involved in several wars abroad, Caesar was conducting his campaigns in Gaul, citizens were rioting and by 49BC Caesar would cross the Rubicon and be made dictator for the first time.

The story of the Late Roman Republic is in essence a tragic one. The decay Cicero consistently speaks of eventually led to its demise and Augustus as emperor with complete control of the State. While of course the Roman Republic was organised very differently to what we might imagine as a modern constitutional arrangement, there might well be some lessons from history for modern-day constitutional democracies and state decline, not least of all, our own.

The Roman constitution was not something that was clear-cut and “designed for purpose” in the manner of modern-day constitutions, rather it evolved according to the needs of the day. The roots of the Roman Republic are in the monarchy of its founder, Romulus, transitioning to kingship, ending in the expulsion of Tarquin the Proud, leading to a mixture of monarchy and aristocracy following the secession of the plebeians in 493, which led to arrangements with some “democratic” elements with the establishment of the senate and the office of consul.

Tracing South Africa’s journey to democracy one can find almost as many detours before we arrived at 1994 and our negotiated settlement. That settlement was flawed yet it brought civil and political rights, if not the economic emancipation that many had hoped for. As decades wore on, the Roman Republic was equally vulnerable to the corruption, abuse of power, patronage, the use of state resources for private gain and indeed, decline. Cicero’s lament for the “already fading” colours of the Republic may be our lament for the state of our democracy as we contemplate a political week in which the essence of a state which has gone rogue has been laid bare. How do we in this context renew the colours of our Constitution and take care to preserve its configurations and general outlines? Cicero in fact was prescient since the Roman Republic slid into empire and autocracy by 23BC.

This was a week largely dominated by the social grants crisis interspersed with Presidential Question Time in which President Zuma expressed surprise that the matter was being deemed a crisis at all. Democracy is a “funny thing” he said, though no one was actually laughing. But, why are we surprised at Zuma’s response? After all, Social Development minister Bathabile Dlamini is only able to act with such impunity because her boss allows it. Zuma’s own ethically compromised position and his relationship with the Guptas has given everyone in his Cabinet and the broader ANC a free pass to act without regard for consequences. The past week also saw Finance Minister Pravin Gordhan appear before the Standing Committee on Public Accounts (Scopa) attempting to explain the Sassa matter. It was a lengthy session of uneven quality. After all, as Gordhan was at pains to point out, the task of National Treasury was to ensure that procurement was in line with the Public Finance Management Act and other procurement rules. How we got into this self-inflicted situation needs to be laid squarely at Dlamini and Zuma’s door. They have allowed the matter to reach crisis point.

Just as the week drew to a close, the ConCourt handed down its judgment ordering that CPS continue the distribution of social grants, but delivering a scathing attack on the state. The ConCourt had so little confidence in Dlamini or the president himself that a strict monitoring system has been put in place to ensure that grants are distributed on April 1. At the weekend we also heard that CPS’ Serge Belamant might have purchased a home in London – in cash – to the tune of R70-million. But as if we were not sure that we were being governed by the courts in what can now comfortably be called “lawfare”, the North Gauteng High Court set aside the appointment of Hawks head Berning Ntlemeza. Predictably, there will be yet another appeal. If Zuma has done anything with effectiveness, it is using the courts to evade a principled decision or to protect the corrupt. In another display of religious hokey, Ntlemeza was prayed over by Pastor Mboro on Sunday lambasting those who would seek to stop him from doing his work of “catching criminals”. Zuma of course has not been averse to using religion as a convenient diversion – we remember that “the ANC will rule until Jesus comes”.

And to cap the truly bad week in which we watched the country’s most senior judges lambast the government for failing the most vulnerable in society, we hear of a break-in at the Office of the Chief Justice and a home invasion of former Sassa CEO Zane Dangor’s home. It’s come to this. In a bizarre statement the State Security Agency said it was not responsible for the break-in at the Office of the Chief Justice. That the SSA would even be suspected of such “dirty tricks” (not unlike those used by the apartheid state) tells us a great deal about the state we are in and the levels to which we may well have sunk.

This is a dangerous moment in the history of our own democracy and not unlike the last heady days of the Republic. We might do well to heed the Ciceronian warning to “take the trouble” to preserve what we have despite its fading hue. The battle in the ConCourt in the social grants matter has put Sassa and the minister on a very tight leash, yet Zuma has inserted himself into the inter-ministerial committee tasked to deal with the matter in a manner that can only be to protect his own interests and those of his associates. Following the money in this matter is now more crucial than ever. We have half a picture but not a complete one as yet.

Patronage and its consequences are nothing new under the sun. In Cicero’s world, amicitia (“friendship” – between those in power and others) was a near institution and what started out as part of the fabric of Roman life quickly became sullied by corruption and abuse of the patron-client relationship in the worst form. The nobility controlled political institutions through their networks of friends and clients “amicitia became a weapon of politics, not a sentiment based on congeniality”. And Roman friendships continually evolved as a “web of expectations and obligations”, creating an environment ripe for abuse, specifically during the period of Rome’s expansion abroad that created many opportunities for such misuse of patronage.

All sounds too familiar?

Undergirding the values of the Constitution is the next struggle we are engaged in. It is one that pits those who would destroy the state for their own narrow gain directly against those who seek to build a country where those in power are accountable and responsive to the citizenry.

It will take a particular vision and commitment to rebuild that which has been broken during the Zuma years especially. Zuma, the proverbial wounded animal, will seek to use the resources of state to clamp down on dissent, abuse the legal process and protect himself and his associates at all costs. Of course, he does so with increasingly waning power as the ANC conference looms in December. That might make him both desperate and unpredictable. In the meantime however, the ANC itself, divided and in disarray ,will be at sixes and sevens in trying to hold Zuma to account. The results of that, whether in Parliament or within the ‘Top 6’, will no doubt result in mixed messages as ANC members hedge their bets ahead of December.

But that internal, opportunistic ANC power-broking is almost secondary to the fight which broader civil society will need to mount – because the rot within the ANC goes far beyond Zuma the individual. As in the Late Roman Republic, it is the system that is in decay and decline. “The treason from within” the ANC can only be stopped by those within. Will they stand up and be counted? Ironically, Blade Nzimande, speaking at an SACP gathering this week, himself said that it was tired of being sidelined within the alliance. But what will the SACP, who was responsible for spiriting Zuma to the Presidency, actually do? Will it have the wherewithal to in fact leave the alliance, and if it does, is that not too little too late? What a price we are paying for Nzimande’s demagogic defence of Zuma in the run-up to Polokwane.

All signs are that civil society is fighting back with purpose and using every means possible to take on the elements of the rogue state. That provides some comfort in these times.

Our Constitution and the institutions that undergird it are holding up bravely even under immense political pressure. Our judges have shown that they are able to withstand being forced to do the unthinkable and that is to enter the fray to do what amounts to governing. Former Deputy Chief Justice Moseneke was right when he tipped his hat to CJ Mogoeng on his retirement and said, “Our democracy is safe in your hands.” Despite the strain the Chief Justice must be under, he has not lost sight of the role of the ConCourt in these times. We need to remain vigilant about the appointment of judges and the effectiveness of our Chapter 9 institutions as well.

The lessons of Cicero’s lament for the decay and decline of the Late Republic should not be lost on us. If it is, we run the risk of a slow burn towards authoritarian government and a Constitution after which we may only hanker in the end. DM


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