Many ask whether ours is a real constitutional democracy or just a fanciful idea.
Many experts will say that South Africa has struggled to entrench the culture of a constitutional democracy, which is characterised by the following: the government’s authority is derived from the people; although “the majority rules”, the fundamental rights of individuals in the minority are protected; the powers of government are limited by law and a constitution that those in power obey; and there are institutional and procedural mechanisms that limit the powers of government, which may include separation of powers and elections held at regular intervals.
Against these essential characteristics, can we call ourselves a constitutional democracy?
The start of our constitutional democracy has been pegged at different milestones. Some say it was born at the conclusion of the interim Constitution on 18 November 1993, which paved the way for the first democratic elections on 27 April 1994, while others say it began with the advent of those first democratic elections and the swearing-in of the first legitimate president on 10 May 1994.
Others say our constitutional democracy began when the Constitutional Court was inaugurated on 14 February 1995 and, on that same day, heard its first case on the constitutionality of the death penalty. We finally had an independent court whose job was not merely to endorse the whims of Parliament as the representative of the people but to uphold the Constitution without fear or favour, fear of prejudice – even if it meant overriding the popular will of the people.
That first hearing on the death penalty led to the seminal judgment of S v Makwanyane that saw the court interpret our Constitution not in line with popular sentiment but in accordance with the highest ideal of our constitutional demands – dignity. Are we not then a constitutional democracy?
We could also argue that our constitutional democracy took root the first time the Constitutional Court made a finding against our first democratically elected and hugely popular president, Nelson Mandela.
In The Executive Council, Western Cape Legislature and Others v President of the RSA and Others, the legislation regulating the restructuring of local government, the Local Government Transition Act, purported to confer powers on the President to amend the legislation, which Mandela purported to do in two proclamations that were declared unconstitutional by the Constitutional Court. Following the handing down of the judgment on 22 September 1995, Mandela went on television that same evening to say that he accepted the decisions of the court, that Parliament would be recalled, and that the constitutional defects in the legislation and proclamations would be rectified.
That moment of Mandela, democratically elected, declaring his acceptance of the unelected court’s order against him was, to some, the moment when we truly became a constitutional democracy.
When most constitutional democracies break at the instance of a petulant government in the face of an adverse finding by a court, ours was only strengthened when Mandela cultivated a culture of compliance. Or does that not count? Was it the naiveté of the early days?
You may say we became a constitutional democracy on that day almost 25 years ago, 10 December 1996, when Mandela signed our Constitution into law at Sharpeville Stadium after two years of intense consultation, debating and agreement by the 490-member constitutional assembly representing the people.
Or did we become a true constitutional democracy as recently as a couple of months ago when the Constitutional Court ordered the imprisonment of a former president, something that remains unprecedented in many older democracies around the world?
Despite the upheaval, the judgment was accepted overall. The former president went to jail and the Republic still stands. Is that not when we became a constitutional democracy?
I think that although we are far from an apartheid state, we are not quite a constitutional democracy yet. But I do feel us shifting closer and closer to the ideals of a constitutional democracy.
I haven’t felt such a shift as I did the last week when we voted in the local elections. Without exception, all my friends were voting out of practical consideration rather than inherited and blind loyalties. We are closer to being a constitutional democracy because, for the first time, I feel that South African elections are anyone’s game. DM168
This story first appeared in our weekly Daily Maverick 168 newspaper which is available for R25 at Pick n Pay, Exclusive Books and airport bookstores. For your nearest stockist, please click here.