Opinionista Ivo Vegter 2 July 2018

The farce of public consultation on land expropriation without compensation

The government has embarked on a country-wide roadshow to engage with the voting public on the proposed constitutional change that would permit property expropriation without compensation. However, the very idea is a farce.

South Africa’s Constitution provides that “public administration must be governed by the democratic values and principles enshrined in the Constitution, including [that] the public must be encouraged to participate in policy-making.”

When legislating, the government routinely avoids public accountability by organising hearings that technically meet the constitutional requirement, but are held in remote locations, at short notice, at times when most people are at work, or without “providing the public with timely, accessible and accurate information,” which is another constitutional requirement.

On the subject of expropriation of land without compensation, however, the government is loudly trumpeting its commitment to public consultation. It embarked on a national tour in late June, which is to last into August 2018.

Yet in this case, even the idea of consultation is farcical. It will be a classic case of two wolves and a lamb, voting on what to have for lunch.

(This felicitous phrase, often followed by, “Liberty is a well-armed lamb contesting the vote”, is sometimes mistakenly attributed to Benjamin Franklin. It probably was first used by Gary Strand in 1990, on a Usenet news group.)

When you gather a group of people together, the majority of which are poor and own no land, and ask them whether the land of the rich minority ought to be seized and redistributed, what answer would you reasonably expect?

If the answer is a foregone conclusion, will the government justify forging ahead with its plans by saying it is merely bowing to the will of the majority, or will it submit to rational arguments, thoughtfully considered, even if they contradict populist sentiment?

Democracy and the will of the majority have become idolised and fetishised. They are seen as their own justification, impervious to criticism, for to question the will of the majority is believed to deny someone the right to equality. In this sense, democracy is equated with freedom, and going against the will of the majority is considered oppression.

Yet democracy is no guarantee of freedom in and of itself. On the contrary. It can bring with it grave dangers.

The election of Donald Trump as leader of the free world surely must rank among them. He has done the world a few great services, notably in rolling back rafts of costly and oppressive regulation. However, he has also proven to be xenophobic, erratic, cruel, hot-tempered, nepotistic, protectionist, corrupt and authoritarian. These are not the great virtues of democracy.

Ferdinand Marcos was elected president of the Philippines in 1965. During the first years of his reign, he oversaw economic expansion. By 1972, he had declared martial law, silenced the press and suppressed the opposition. These anti-democratic measures were ratified democratically in 1973, by a majority of 91%.

For a while, the economy continued to grow, but by 1980, the tide had begun to turn. The country collapsed under the weight of widespread corruption, cronyism and kleptocracy at the hands of Marcos, who had stolen billions of dollars from the public coffers. The people experienced extreme poverty, unemployment, and crushing debt.

In 1986, a popular revolution was required to overthrow him. A civil war was narrowly avoided only because Marcos fled the country with his wife, Imelda. She was herself infamous for her flashy mansions, expensive jewellery, valuable art, designer clothes and thousands of shoes. Democracy did not serve the Philippines well.

In Zimbabwe, Robert Mugabe was democratically elected, and proceeded to rule with an iron fist for nearly 40 years. In the process, he hurled his country’s economy headlong off a cliff, notably by advocating land expropriation without compensation.

Hugo Chávez and Nicola Maduro were democratically elected in Venezuela, and led their country into a “Bolivarian Revolution” that left its economy in tatters and its citizens starving.

Adolf Hitler was democratically elected, and proceeded to commit genocide and start a global war.

Shortly after that war brought victory against fascist totalitarianism (though not against communist totalitarianism), Winston Churchill reminded us: “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…”

His aim was not to diminish the importance of democracy. After all, this is the same man who on another occasion said: “At the bottom of all the tributes paid to democracy is the little man, walking into the little booth, with a little pencil, making a little cross on a little bit of paper. No amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of that point.”

Ludwig von Mises, in Human Action, wrote: “Men are not infallible; they err very often. It is not true that the masses are always right and know the means for attaining the ends aimed at. ‘Belief in the common man’ is no better founded than was belief in the supernatural gifts of kings, priests, and noblemen.

Democracy guarantees a system of government in accordance with the wishes and plans of the majority. But it cannot prevent majorities from falling victim to erroneous ideas and from adopting inappropriate policies which not only fail to realise the ends aimed at but result in disaster. Majorities too may err and destroy our civilisation.”

The one pervading evil of democracy is the tyranny of the majority,” wrote Lord Acton in 1878.

Democracy is not a panacea. It is not the same as freedom. It is not the same as prosperity. To achieve those ends requires something more than simply the right of the people to elect their government.

A constitutional bill of rights exists to protect citizens from abuse of power by their government. Because government is democratically elected by the majority, a constitution indirectly protects individual citizens from the actions of the majority. It is required to protect individuals from the tyranny of the majority.

Aristotle, in his treatise on Politics, wrote: “The basis of a democratic state is liberty.”

Liberty is the absence of control exerted by a tyrannical governing class, be they a majority or a minority. It is the freedom to act, as limited only by the same freedom of another. Notably, it is the freedom not to be enslaved. To circumscribe that freedom requires the rule of law, to which in a democracy everyone, including the government, must be subject.

A basic corollary of the freedom from slavery is the right to own property. What one produces, or purchases with the proceeds thereof, ought to be protected from arbitrary expropriation.

In his Second Treatise on Government, John Locke wrote: “Man has a property in his own person; this is something that nobody else has any right to. The labour of his body and the work of his hands, we may say, are strictly his. … Every man is naturally free, and… nothing can make him subject to any earthly power except his own consent… So the great and chief purpose of men’s uniting into commonwealths and putting themselves under government is the preservation of their property.”

By noting that one has property in one’s own person, it becomes clear that his meaning is broader than merely to protect material possessions. Locke is arguing that the purpose of government is to protect not only possessions, but also liberty and life itself.

Murray Rothbard took this notion a step further, arguing that all rights are rooted in property rights, in the sense that Locke used the term. In Man, Economy and State, he wrote: “For not only are property rights also human rights, but in the most profound sense there are no rights but property rights. The only human rights, in short, are property rights. There are several senses in which this is true. In the first place, each individual, as a natural fact, is the owner of himself, the ruler of his own person. The ‘human’ rights of the person that are defended in the purely free-market society are, in effect, each man’s property right in his own being, and from this property right stems his right to the material goods that he has produced.

In the second place, alleged ‘human rights’ can be boiled down to property rights, although in many cases this fact is obscured. Take, for example, the ‘human right’ of free speech. Freedom of speech is supposed to mean the right of everyone to say whatever he likes. But the neglected question is: Where? Where does a man have this right? He certainly does not have it on property on which he is trespassing. In short, he has this right only either on his own property or on the property of someone who has agreed, as a gift or in a rental contract, to allow him on the premises. In fact, then, there is no such thing as a separate ‘right to free speech’; there is only a man’s property right: the right to do as he wills with his own or to make voluntary agreements with other property owners.”

A similar argument can be made for the right to a free press. It consists merely of the right to publish what one wishes, which is essentially a property right, and to sell or give it to someone who is willing to accept it, which again is a property right.

The right to property cannot be abrogated by a democratic process, any more than the right to life, the right to bodily integrity, or the right not to be enslaved can be abrogated by popular vote. No majority may legitimately vote to permit murder, or assault, or slavery, even only in certain cases, and even when the government has promised to use that power wisely.

Doing so would undermine the rule of law on which democracy is grounded. It would undermine the basic rights and liberties which prevent a democracy from degenerating into a corrupt tyranny.

Whenever one sacrifices a right and grants a power to a government, one should first recognise that the chance of taking it back without force is minimal. Then one should consider not what the present, well-intended government might do with it, but what the worst opposition you can think of might do with it. The apartheid government had the right to expropriate property without compensation. What did they do with it? What would Julius Malema do with that power?

It is right and proper that the majority is able to elect who governs them. That is an essential freedom, and is at the core of democracy. However, democracy is a means to an end. It does not imply unlimited power for the majority. When individual citizens do not enjoy inviolable rights to life, liberty and property, a democracy cannot be just, and cannot deliver individual freedom or general prosperity.

When the rich plunder the poor of his rights, it becomes an example of the poor to plunder the rich of his property, for the rights of the one are as much property to him as wealth is property to the other,” wrote Thomas Paine in 1792, as if he had witnessed apartheid.

And as if he had witnessed South Africa’s constitutional negotiations, he continued: “It is only by setting out on just principles that men are trained to be just to each other; and it will always be found, that when the rich protect the rights of the poor, the poor will protect the property of the rich.” DM

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