Thanks to the iconic and visionary leadership of Nelson Rolihlahla Mandela and the multiparty teams of legislators who drew up the interim and final Constitution, South Africa now has the best Bill of Rights in the world with which to affect meaningful transformation that secures “ecologically sustainable development” for “this and future generations” (as per section 24 of the Bill of Rights).

The burning question is, nearly 23 years later on, why is this transformation not happening?

I believe that this is because fulfilling the Bill of Rights will require nothing less than a paradigm shift to a completely new system of governance for this to become possible, as is obligated by section 2 of the Constitution, which states: “This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”

But if the existing system of majority-rule government cannot fulfil them, this raises two seriously chicken-and-egg-type questions. How then were these obligations-in-law created in the first place, and what law is going to ensure the fulfillment of these rights in the future?

The only logical answer to the first question is that the dialectical process of the Government of National Unity (GNU), which by consensus agreement actually created the Bill of Rights, must itself have been the real beginning of the paradigm shift.

Prior to its establishment, the political negotiations at Codesa 1 had collapsed and the negotiations at Codesa 2 had deadlocked with no sign of reaching consensus about anything. At the time, the very real possibility of a civil war was quite palpable.

Then tragedy struck. On 10 April 1993 Chris Hani was assassinated, which raised that possibility right to the brink of catastrophe. This was the trigger event that brought South Africa to its ultimate tipping-or-turning point where time had run out for any more political horse-trading.

The only tangible way forward was for all of the political parties to place their trust in “The Democracy” of the nation and get on with founding the interim Constitution on the non-political basis of “… a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law” (as in the preamble to the final Constitution).

The interim Constitution was in place very soon thereafter and South Africa as one nation was enabled to pass safely through the turning point to its first, truly democratic elections in 1994.

The unforeseeable snag was, however, that with the immense and immediate task of taking over the running of the state after the elections, plus the disintegration of the GNU in 1996, the new ANC government was effectively captured into running the old, “Westminster” system of government.

The result was, I could safely argue, that over time the captured ANC became exactly what Frantz Fanon predicted it would in The Wretched of the Earth (with my contextualisation in brackets). 

In effect it became a new “get-rich-quick (political) middle class” that was “avid and voracious, with the mindset of a huckster, only too glad to accept the dividends that (the state) government hands out to it”, and that “shows itself incapable of great ideas or of inventiveness”.

This grotesque caricature of “liberation” is what I think Nelson Mandela was foreseeing when he made his rather anguished plea for “an RDP of the Soul”. Mandela’s own words best describe the “people-centred” purpose of his RDP, or Reconstruction and Development Programme:  

“My government’s commitment to create a people-centred society of liberty binds us to the pursuit of the goals of freedom from want, freedom from hunger, freedom from deprivation, freedom from ignorance, freedom from suppression and freedom from fear. These freedoms are fundamental to the guarantee of human dignity. They will therefore constitute part of the centrepiece of what this government will seek to achieve, the focal point on which our attention will be continuously focused. The things we have said constitute the true meaning, the justification and the purpose of the Reconstruction and Development Programme, without which it would lose all legitimacy”. – Inaugural address by Mandela to the joint sitting of Parliament, 24 May 1994.

Five years later the Mail & Guardian of 20 August 1999 carried an article about the final abolishment of the RDP Portfolio Committee, the last RDP structure in Parliament – this despite a warning by Max Sisulu (the ANC’s previous chief whip) that to disband it “could be disastrous for the ANC locally, provincially and nationally”. (How true this perception has proved to be.)

So, in a nutshell, with their political capture into the old system of “top-down” government along with the abolition of the “bottom-up” RDP, the dialectical process and mechanism of democratic implementation necessary to fulfill the constitutional obligations in the Bill of Rights were eliminated – and thus, I believe, the whole process of transformation was expediently derailed.

Moreover, the paradigm shift to a new system of state governance was derailed with it.

That this dramatic turnaround by the new, ANC-led government was the result of a vital response to the serious challenges that confronted it after handover is not in dispute here; the hugely indebted and stagnating SA economy was in crisis and resistance to vital changes in the system of state bureaucracy responsible for the actual implementation of apartheid were both immense challenges to overcome. But there was a terrible consequence that is not properly acknowledged.

Abolishing the national RDP mechanism also caused the abandonment of the very popular, local RDP mechanisms of democratic participation. And even though an audit of the efficacy of the RDP policy conducted by the HSRC and Wits University found that its implementation had been “uneven”, the audit concluded that the GNU had “broadly set down the right policy”.

But in pulling the plug on the RDP on the ground, many new “babies” of local constitutional democracy went down the drain with the RDP bathwater, and for sure my local RDP community in the Greater Plettenberg Bay Municipality (now the Bitou Municipality) was quite possibly the most remarkable of those democratic babies lost to… well, the nothingness of abandonment.

Now, with the threats of economic calamity, chronic levels of poverty and unemployment, and a climate change catastrophe, I believe SA has once more reached a critical tipping-or-turning point similar to the one that compelled the successful negotiated settlement.

However, this time round the Covid-19 pandemic is the trigger event which has pushed not just SA, but the whole world to this ultimate point of choice – transform now or face catastrophe. 

Which brings us back to the second chicken-and-egg question posed near the beginning: what law is going to ensure constitutional fulfillment of the Bill of Rights in the future? It also brings us back to local elections 2021.

There is compelling evidence which shows that local government is the most dysfunctional sphere of state government that demands an intervention before the next election.

Yet, paradoxically maybe, it is in this sphere of government where the law is already in place to ensure the fulfillment of the obligations. The dilemma is that it is not yet being complied with.

I refer here to the Municipal Systems Act of 2000 (MSA). This act effectively resolves a serious shortcoming in the Constitution in that it does not contain any detail whatsoever about a mechanism to actually manifest non-political, people-centred democratic participation.

Yes, the Constitution does establish the first principle for participation in its section 152 (1)(e) “to encourage the involvement of communities and community organisations in the matters of local government”. But in no way does it explain how it could actually be done.

The main aim in the purview to the MSA clearly does establish how it could be done in that it requires that a support framework is to be established by other spheres of government in order to “… progressively build local government into an efficient, frontline development agency capable of integrating the activities of all spheres of government for the overall social and economic upliftment of communities in harmony with their local natural environment”.

It is worth noting here that the last seven words “in harmony with their local natural environment” were adopted from a mandated submission I made on behalf of the Plettenberg Bay (Plett) RDP Forum to the public hearings on the Municipal Systems Bill.

These words were submitted in order to align the above aim of the act with the Agenda 21 strategy for “sustainable development” as well as for the equivalent “ecologically sustainable development” as per section 24 in the Bill of Rights.

As to how it could be achieved, the Plett RDP Forum created a precedent for the ideal way this could be done according to section 16(1) of the MSA – well before the MSA was in fact promulgated.

The opening lines of section 16(1) begin with the following, “A municipality must develop a culture of municipal governance that complements formal representative government with a system of participatory governance…”

And it is the clear systemic distinction between the terms “government” and “governance” that are of enormous significance for what happens after South Africa’s next local elections.

This is because recognising and adopting this distinction into local government practice could resolve the historical conflict of interest between the partial constituency of majority-rule politics and the whole constituency of statutory democracy where the polarisation from divisive politics eliminates any possibility of synthesising real working democracy.

What this means is that at local level, party political government should concern the whole constituency in a municipal area (which it already does proportionally for the executive and legislative functions of local government), while state governance should concern the statutory action-taking in the smallest geophysical area of the democratic state, the municipal ward.

In other words, and by its very nomenclature, a ward councillor must represent the whole citizenry of that smallest area of the state, and the conflict of interest arises when that councillor is also on the executive of a political party which only represents a partial constituency in that ward.

The second amendment to the MSA was mainly introduced to address this selfsame conflict of interests in the case of municipal managers, and the simple, legislated ruling was that a municipal manager may not at the same time sit on the executive of any political party.

Establishing this zero-conflict partition between political government and statutory governance is, I profoundly believe, the most vital issue to resolve before holding the next local elections. And why I hold this belief so strongly is that the RDP Forum in Plettenberg Bay set a precedent for how it could be achieved as a new, legislated entity of local government (as prescribed by 2(b)(ii) in the MSA). 

At the founding meeting for the establishment of the Plett RDP Forum (attended by the mandated representatives of 56 local organisations) a list of founding principles was unanimously accepted, one of which was that no member of one executive body could sit on the executive of another body.

Applied in the case of an elected ward councillor this means that to be fully representative of the ward citizenry, the councillor may not also hold an executive position in a political structure.

But this was by no means the only thing the Plett RDP Forum achieved.

With its zero-conflict partition in place, quite remarkably it went on to synthesise a precedent for real working democracy, and in doing so it also designed a self-organising and self-determining system for “integrating the activities of all spheres of government for the overall social and economic upliftment of the [Plett] community in harmony with its local natural environment”.

This design would have been the perfect fit for “the system of participative governance” required in law to complement the formal representative system, but it was totally ignored by local politicians.

In the final few months of its existence (before it inevitably became dormant), a diehard group of Plett RDP members went on to workshop a detailed vision and strategic plan for what should have happened next. This included a purpose-built IT system and development infrastructure plan.

Over the five years of its existence many thousands of people-hours went into the effort it took to get the RDP to this point. With the abandonment of the RDP all this effort was abandoned.

Remembering these amazing achievements and writing about them in this piece brought an ache to my heart – like the ache for a lost love – and this prompted a sudden realisation. The euphoria of being part of our RDP made us all a tad overenthusiastic at times. I know I was forever going on about “the community this” and “the community that”, ad nauseam. We all were.

One day this proved just too much for my RDP mentor and she turned and snapped the question back at me, “what is ‘the community’?” I remember it stopped me in my tracks. I had no answer. In writing this piece I finally had the answer.

It’s the same sense of spirit which brought about the liberation struggle, the Freedom Charter, the negotiated settlement, the GNU, the elections in 1994, the writing of the final Constitution, and the establishment of the Plett RDP Forum.

It also gave humanity by far its oldest institution of “community” that was Africa’s gift to the world of all people. It’s the living community spirit of solidarity, come what may. In Africa it is called ubuntu.

The answer to the question is, therefore, a “community” is manifested through having the living spirit of ubuntu.

But most significantly all, ubuntu was what Nelson Mandela brought back to life in South Africa and wrote into his legacy in law. Democracy may be its name in the present day, but it was really ubuntu all along.

So, for the success of the 2021 elections and the future of South Africa let’s get the politics out of democracy and let it breathe new life into a waning South Africa by getting local transformation back on track where it lawfully belongs.

After all, to respect Madiba’s legacy-in-law demands compliance with it. DM