Opinionista Paul Hoffman 4 May 2018

Twenty-four years of constitutional democracy

Those long and snaky queues of all South Africans, who formed them in splendid rainbow array on 27 April 1994 at the polling stations set up for the first universal suffrage national election ever held in SA, have become emblematic of the hopes and aspirations of the nation “united in its diversity” and in its determination to make democracy work in the last formerly “unfree” corner of Africa.

In a process in which all political parties and about 2 million citizens participated actively, a national accord and a new constitutional dispensation were successfully negotiated. This process led to the adoption by parliament (and eventually to certification by the then-new Constitutional Court) of a new legal order in the land.

The current Constitution in SA came into force in February 1997. It encapsulates the values and principles by which the country is now governed. Instead of the previous parliamentary sovereignty, which gave too much power to the minority white government, a constitutional democracy under the rule of law, in which the Constitution is the supreme law, is now in place. Power is in the hands of the people.

Politicians can no longer do as they please or see fit; they are all constrained by the Constitution. Law or conduct inconsistent with the Constitution is invalid; accordingly, the courts are empowered to strike down laws and conduct which do not pass constitutional muster.

Over the years since 1994 there have been many instances of law or conduct by government that have been successfully impugned by civil society organisations, activists and opposition political parties. The fight for justice for people living with HIV/Aids, the struggle for adequately independent anti-corruption machinery of state and the “pay back the money” campaign concerning misappropriation of state funds at the Nkandla homestead of the Zuma clan are all examples of politicians being held to account for not behaving in a manner consistent with the Constitution.

When the snaky queues formed in 1994, the people of the country held in prospect a new order in which their inherent dignity would be respected; the achievement of equality would be promoted and the enjoyment of the various freedoms set out in the Bill of Rights would be guaranteed to all. A state that respects, protects, promotes and fulfils the compendium of rights in the Bill of Rights is required by the Constitution.

The multi-party democratic new order envisaged in the foundational provisions of the Constitution has to be conducted openly, accountably and responsively. Any government that is not responsive to the realisation of the rights and does not concern itself with provision for the needs of the people is not comporting itself accountably; such a government replaces openness with opacity and falls short of what is expected of it by the people and by the Constitution. The ongoing failures of service delivery in respect of adequate housing, basic education, sufficient health care and social security all bear witness to the failure of government to live up to the standards required of it by the Constitution.

The public administration, including the state owned enterprises, is meant to be ethical, effective and efficient. Its work must be done transparently and accountably and its staff must be recruited with due regard to sound human resource management practices. People’s needs must be responded to and public participation in policy-making must be encouraged. Services must be provided impartially, fairly, equitably and without bias.

Regular elections which are conducted freely and fairly have to be held so that politicians remain accountable to the people who vote for them and, indeed, against them. Voters get the government they vote in, if elections are free and fair.

The procurement of goods and services by the state has to be in accordance with a system that is “fair, equitable, transparent, competitive and cost-effective”. This system, properly applied, ought to be capable of eliminating corruption and cronyism in state spending.

When so many millions stood in the snaky queues of 1994 they envisaged a new order in which they would get what they want from the newly configured state. Ordinary folk yearn for peace that is secure, progress that is sustainable and prosperity that is shared. In a phrase, taken from the Constitution itself, the aim is “to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life”.

The common aspirations in regard to peace, progress and prosperity are well catered for in the structure of the Constitution, but its implementation has been somewhat patchy due to the failure of the electorate to hold to account those political parties which have failed them in the achievement of their aspirations.

The dominant ANC led alliance, which includes the SA Communist Party and the Cosatu-affiliated trade unions, has degenerated into a corrupt patronage network of villainous cadres hell bent on securing as much profit as possible from the state for their circle of cronies without regard for the need to be responsive to the people who voted them into positions of power. There is very little of the ethos of service to the people in SA politics; instead careerism and selfishness hold sway. The tripartite alliance pursues its national democratic revolution (which seeks hegemonic control of all “the levers of power” in society) instead of implementing the promises of the Constitution.

It is now well documented that the premier of a small and poorly run province illegally used public money to gift a herd of cattle to a former president. The fact that nothing has been done to end, or at least suspend, their membership of the ANC and to hold both of them to account in the civil and criminal courts of the land is telling evidence that the much vaunted “new dawn”, that has so boosted consumer confidence, is but a false dawn. Those currently riding the wave of Ramaphoria are about to be dumped head first into the hard sand of a reality that reveals the severe limitations upon the new hands at Luthuli House in dealing with the Zuma era operatives and mopping up the corrupt mess left behind by the “Guptarisation” of the state.

After 24 years, it is time to take stock and to ask whether democracy has failed the people of SA. Winston Churchill once said, in the British parliament, that:

Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…”

Ellen Johnson Sirleaf, the first woman president in Africa, is more optimistic in her outlook on the topic in her speech accepting the Mo Ibrahim Prize for Achievement in African Leadership on 27 April 2018:

Liberia’s progression toward democratic values, as exemplified by the successful 2018 transition, is reflective of Africa’s quest for democracy. It is a continuum of the continent’s struggle for liberation and freedom.

As Nelson Mandela said in March of 1991, “I belong to the generation of leaders for whom the achievement of democracy was the defining challenge.”

Trends remain encouraging as young people, empowered by education and technology, demand their right to be heard, and, to be listened to. Africa’s evolution illustrates the strong causal effects between democracy and development.

Afrobarometer finds that seven out of 10 Africans believe democracy is preferable to all other forms of government. A number of countries, including The Gambia, Ghana, Senegal, Nigeria, Benin, Botswana, Namibia, Kenya, Lesotho, Malawi, Tanzania and Côte d’Ivoire have conducted free and fair elections, leading to peaceful transitions of power. And within democracies, political parties are self-correcting, as recently witnessed in South Africa.”

Perhaps the former British prime minister and the former president of Liberia are both right. Certainly, to the extent that research reveals that 70% of Africans prefer democracy, an effort should be made to ensure that democracy works for them.

Ensuring that elections are fairly conducted is fundamental to the realisation of this desire for democracy. The funding of political parties has to be regulated in such a way as to produce a level playing field at election time. In SA this has not been the case in all elections since 1994. The ANC regards the state and the state owned enterprises as its election funding piggy bank. No other political formations are able to access funding from these sources and in the amounts made available to the ANC through the arms deals and the Hitachi Power Africa procurement contracts, not to mention Guptagate. Although first said a long time ago, it remains true that the price of liberty is eternal vigilance.

Freedom is self-evidently the responsibility of all those South Africans liberated by the changes of 1994. This responsibility is exemplified by the need for voters to be engaged in the issues of the day, to participate in the policy-making endeavours of the state and to be active citizens who exercise their freedom rather than allowing it to wither on the vine. There is really no excuse for not voting. In SA this truism is reinforced because so many sacrificed so much to gain the right to vote. When voting, it is preferable to vote in a manner that best serves the individual desires for peace that is secure, progress that is sustainable and prosperity that is equitably shared. It is in this way that dignity will be respected, equality of rights will be achieved and freedom will be properly enjoyed.

Taking responsibility for freedom involves upholding the rule of law. This responsibility is rooted in the Constitution. It describes the rule of law as “supreme” and therefore on equal footing with the Constitution itself. The rule of law has been authoritatively defined by the World Justice Project as having four main elements:

1 Accountability

The government and private actors are accountable under the law.

2 Just Laws

The laws are clear, publicised, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.

3 Open Government

The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.

4 Accessible and Impartial Dispute Resolution

Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the make-up of the communities they serve.

These four universal principles constitute a working definition of the rule of law. They were developed in accordance with internationally accepted standards and norms, and were tested and refined in consultation with a wide variety of experts worldwide.

The law as it is applied in SA, and indeed in Africa, is not always consistent with the tenets described above. State capture cannot take place in a society in which the rule of law is consistently applied without fear, favour or prejudice. Politicians who are self-serving do not thrive in a state in which the rule of law holds sway; those politicians who take office to serve the people do however do well.

It is accordingly up to voters to identify the politicians and the political parties who will best serve their desires for peace, progress and prosperity and to vote accordingly. This tactic is the best way to ensure the success of democracy through open, accountable and responsive governance. In SA we have the recipe for success in the Constitution; we need only unite around implementation of its values and principles to succeed beyond the wildest dreams of 1994. Democracy succeeds wherever democrats take it seriously. Where democracy is taken for granted or even sneered at, the gains of constitutionalism are soon lost and the slide to failed statehood or the kleptocracy for which Africa is notorious take hold. In SA there are state institutions that have been created to support constitutional democracy. They are independent and account to the national assembly. Human rights and clean administration ought to flourish if these institutions, working in tandem with our independent and impartial courts, are utilised to the full by engaged and active citizens who elect to remain vigilant about the freedoms they enjoy, or should enjoy, under the Constitution.

The role of civil society organisations, faith-based institutions and the investigative media in holding the politicians to account cannot be under-estimated. Together with academia and the Chapter Nine Institutions in SA, they serve as a bulwark against the abuse of power and the erosion of the rule of law. “Eternal vigilance” remain the watchwords of freedom-loving democrats everywhere. DM

Paul Hoffman SC is a director of Accountability Now

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