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Democracy for dummies: No, election winners do not have more rights than election losers

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Paul Hoffman SC is a director of Accountability Now.

Politicians who win elections are not allowed to do as they please simply because they command a majority in Parliament. They must pass laws and conduct themselves in a manner that is consistent with the Constitution.

The upper echelons of the ANC are infested with a disease called “majoritarianism”. The disease is chronic. Who can forget President Cyril Ramaphosa carefully explaining “democratic centralism” to the Zondo Commission while defending the illegal and unconstitutional habit of cadre deployment in the public administration and in the State-Owned Enterprises (SOEs)?

Before that debacle, we had former president Jacob Zuma making it clear to the then leader of the opposition in the National Assembly, a gobsmacked Lindiwe Mazibuko, that the majority has more rights than the minority – “that’s how democracy works!” he explained.

The latter sentiment found its echo in a parliamentary impromptu response of the newly minted deputy president, Paul Mashatile, while his grizzled elder in Parliament, Mathole Motshekga, also last week, complained bitterly that the opposition parties ruin the efforts of the majority in Parliament. Both outrages have been well covered in the columns of Daily Maverick and do not bear repetition here.

Some analysis of the attitude of these influential politicians is, however, required.

Constitutional democracy under the rule of law did not fall from the skies above South Africa. Before it, there were Afrikaner nationalists clinging to a form of parliamentary sovereignty that had a “whites only” sign hanging over it and was propped up by the doctrine of apartheid to which they subscribed.

There were also those, mainly African nationalists, struggling for the liberation of the country from the yoke of apartheid. Some in the freedom Struggle were banned and exiled, others went to prison for their revolutionary thoughts and actions. Some died. Most stayed put and fought it out in the interests of peace, progress and prosperity for all.

When, back in the 1990s, the pressure for change became intolerable, the Afrikaners changed tack, unbanned the liberation movements, freed the prisoners and sued for peace. A long and arduous process followed in which those struggling for revolutionary change haggled with those clinging to apartheid power, parliamentary sovereignty and the privileges of centuries of colonialism and exploitation of the natural and human resources indigenous to the country.

A National Accord was forged in the negotiation process. Parliamentary sovereignty, past privileges and inequality of treatment of people ended up on the scrap heap. So did all ideas of revolution, the violent overthrow of the existing order and a victorious march on Church Square to dismantle the statue of Paul Kruger, last president of the ZAR.

Free at last, the leaders exclaimed, free to pursue peace, progress and prosperity for all.

In the place of the clashing value systems came a supreme Constitution which entrenches the rule of law and contains a Bill of Rights which is justiciable. We are now all equal before the law, president to pauper.

Ours is a non-racial, non-sexist order in which careful checks and balances on the exercise of power have been installed, including an impartial and independent judiciary and Chapter 9 institutions expressly designed to bed down constitutional democracy by converting the passive subjects of the old authoritarian order into the emerging active citizens who participate in the new democratic order.

The Constitution embodies a value system that is neither revolutionary nor a continuation of the old order. Instead, it is a transformative document that specifies in some detail the obligations of the state to respect, protect, promote and fulfil the human rights guaranteed to all. A system of spending public money wisely is set out, as are the principles and values that inform the operations of the public service and SOEs.

SA is not a one-party state; on the contrary, free and fair elections in a multiparty system that is open, accountable and responsive is the new order of the day. Implicitly, hegemonic control of all the levers of power in society is frowned upon by the express provisions of the Constitution.

Politicians who win elections are not allowed to do as they please simply because they command a majority in Parliament. They must pass laws and conduct themselves in a manner that is consistent with the Constitution. The foundational values set out in detail in Chapter 1 of the Constitution are entrenched in a way that requires a 75% majority to change them. Other provisions of the Constitution require a 66.6% majority to be amended or abandoned.

The Bill of Rights is the envy of freedom-loving people throughout the world. It envisages the progressive realisation of various rights within the available resources of the state via reasonable legislative and other measures. Since day one of the new constitutional order, most rights have been claimable in full.

Over time, the limits of what the Bill of Rights contemplates have been tested in public interest litigation. Rights to medical treatment, the vote, housing, safety and security, water and food have all had their day in court. All too often, the efforts of government have been found wanting and measures taken have been referred back to the drawing board to render them constitutionally compliant.

Unfortunately, some politicians still believe in the sovereignty of Parliament and the right of the majority to enforce its will on the minority. That is primitive majoritarianism and it has no place in the constitutional order that was developed during the negotiation process that led to the adoption of the National Accord and then the interim and final constitutions.

When politicians take office, they are required to swear an oath or affirmation of their fealty to the rule of law and the Constitution. They undertake to be faithful to the Republic and that they will obey, respect and uphold the Constitution and all other laws.

There is no reference to revolution in the Constitution. The revolution ended when the National Accord was entered into and it was thoroughly buried by both the interim and final constitutions.

There is no logic in an alliance that enjoys a majority in Parliament pursuing a revolutionary agenda. The ideology of the National Democratic Revolution (NDR), which is at the heart of much of the dysfunction in government, has no place in a multiparty democracy under the rule of law.

The majority can only effect changes that are consistent with the Constitution. Any other changes to the law or unconstitutional policies are liable to be struck down by the courts for their failure to comply with the values and principles of the Constitution. And they are struck down in our courts.

To the extent that the NDR is consistent with the Constitution, it is open to the majority to pass laws and take measures to advance those aspects that accord with the Constitution. Any other measures are liable to be impugned. And they are.

These hard facts about the legal order in SA are not faced when the deputy president relies on majoritarianism to justify an irrational vote to avoid the appointment of a parliamentary ad hoc committee to investigate goings on at Phala Phala that have attracted adverse findings in some quarters.

Parliament is obliged to exercise oversight over the executive branch of government. Declining to do so when Jacob Zuma indulged himself in some illegal Nkandla home renovations at the expense of the taxpayers was as irrational as declining to look into the Phala Phala affair.

Far from derailing Parliament, the efforts of the opposition to secure a parliamentary ad hoc committee are the proper exercise of the oversight obligations of Parliament. The ANC caucus would do well to read the judgment of the Constitutional Court in the litigation over Nkandla.

Constitutional delinquency ought to be avoided by those sworn to uphold the Constitution. It obliges the National Assembly to provide for mechanisms that ensure that all executive organs of state in the national sphere of government are accountable to it and to maintain oversight of the exercise of national executive authority, including the implementation of legislation.

A former Chief Justice, as part of a panel, has found that President Ramaphosa may have a case to answer in regard to the goings-on at Phala Phala. Ramaphosa is, and will remain, paralysed by this finding until the matter is cleared up properly. The limping criminal justice administration does not appear to have the wherewithal to prosecute anybody involved in the matter, not even the policeman who the Office of the Public Protector threw under the bus in its preliminary report, nine months in the making.

It is not opposition parties who are “derailing” Parliament; it is the unconstitutional attitude of die-hard revolutionaries in the ranks of the ANC who are doing so, again and again. 

The practice of cadre deployment indulged in by the ANC is illegal and unconstitutional both in the SOEs and in the public administration. The revolutionaries persist in the noxious practice.

The notions of revolution and “democratic centralism” are nowhere to be found in the Constitution. They were not and are not part of the deal that gave birth to our new order.

Those who cling to revolution-speak should get over themselves and pay greater attention to what the Constitution envisages as the means of transforming South Africa into a land of inherent human dignity in which the achievement of equality and the advancement of human rights and freedoms are the order of the day as set out in section 1 of the Constitution.

These are worthy aims and values – there is no need for a revolution to achieve them. As the EFF discovered last week, there is no appetite for revolution in SA.

Instead of looting of the public purse (as much as R3-trillion in State Capture alone, according to some estimates), an effort to properly implement the promises of the Bill of Rights is indicated as the appropriate way forward. Recouping the loot could finance a comprehensive roll-out of the Bill of Rights: the elimination of load shedding and pit latrines would be a good start.

Blaming the opposition for derailing Parliament is a cop-out. For as long as the majority in Parliament tries to paint outside the lines of the Constitution, it will be derailed by those who are true to the values and principles of the Constitution, whether they are in Parliament or in civil society.

The revolutionaries should take a long hard look at their track record of revolutionary change. They may realise that advances that have been made since 1994 are those that are constitutionally compliant and such “derailing” as has occurred has been the very proper and legally sound derailing of revolutionary notions that have no place in the value system of the Constitution.

If this realisation is reached, the advice of the late Professor Kader Asmal will be accepted. The revolution will be abandoned in favour of a genuine effort to implement the Constitution. This worthy aim is achievable if any new law, measure or policy is first held up to the light of the Constitution and examined for its compliance with its principles and values. DM

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Comments - Please in order to comment.

  • Richard Bryant says:

    Written like poetry. Thank you!

  • Errol Price says:

    An admirable exposition on the fundamentals of constitutional democracy which will have absolutely zero influence on the ANC and its allies.
    The ANC was never really interested in ” separation of powers ” and all that silly western , liberal nonsense.
    They wanted to get their hands on the levers of power and control the public purse. Now they are even done with keeping up the tiresome pretense. They are well into the ” anti -colonialist ” mode.
    They now represent the ” majority “which can do much as they choose and those who do not like it can follow the rest of colonialist settlers who temporarily resided on this continent who went ” home ” when the true owners took control.

  • William Stucke says:

    Well said, Sir!

  • Roy Campbell says:

    Wisdom is sadly a gift in short supply. Paul Hoffman has presented a fundamental insight into understanding the importance of sticking to constitutional principles and the bill of rights which were both developed with a generous dollop of wisdom in the mid 1990’s in South Africa. Let us consistently approach each issue and check accountability in terms of our constitution and bill of rights – we owe it to ourselves and our entire nation to do so. DM is leading the charge on this and it is appreciated.

  • Louis Potgieter says:

    In an input into the recent China Democracy Forum, Prof Jeffrey Sachs gave his criteria of good governance in political institutions:

    1/ Consistent orientation towards the common good

    2/ Honour procedural justice

    3/ Capacity to achieve procedural and substantive justice

    4/ Foster the virtues of civic participation and good behaviour of citizens

    5/ Treatment of minorities with respect, decency and procedural justice

    6/ Treat other nations with respect, peace, readiness for dialogue and co-operation

  • Lisbeth Scalabrini says:

    All elected politicians ought to pass an exam on how to properly implement the promises of the Bill of Rights before getting into power. And maybe also a few questions on the whole constitution should be included.

  • Dennis Bailey says:

    Say it again. LOUDER!

  • Helmut Straeuli says:

    We have a wonderful Constitution – only it was not written with the different people of South Africa in mind. As such it remains a kind of utopia, and the politicians will continue to shamelessly use and interpret the Constitution in ways which benefit the small (self-appointed) elite, while the majority languish in an ever increasing majority, which has little or no say in what happens.

  • Roelf Pretorius says:

    While I agree with most of Paul’s analysis, I shall neglect my responsibility towards SA and its communities if I don’t challenge his opinion about how the government has to be held to account. This can only be done on grounds of facts, not rumours nor lies. And in the Phala Phala saga the opposition tried to hold Ramaphosa to account on grounds of at best rumours, but more probably a pack of lies drummed up by Arthur Fraser in order to paralyse the President, as he so eloquently stated. The real (if unofficial) facts have all been made public by Daily Maverick’s reporting. On what grounds he claims that the matter still has to be cleared up is not clear; if the public protector’s verdict was anything else than what it was, it would have been a further traversty of justice. The truth is that tresspassing has occurred; but it is not Ramaphosa that is the transgressor, he is the victim. So unfortunately in that case the ANC was correct in what it did and the opposition, by effectively taking the side of the corrupt and the lie (by siding with Arthur Fraser) showed that SA is in trouble because we do not have an alternative to the failing ANC. Unless we all vote for ActionSA, BOSA or the independents, none of which is in parliament at all and all of which is in other words ill-prepared to take over the reigns. So it is true that the ANC is not committed to the Constitution; and they are faithfully followed by the opposition also. WHAT A MESS!

  • david clegg clegg says:

    Well said, as always. To my mind, the most important point is that the tripartite alliance’s NDR is incompatible with the Constitution for the simple reason that the Constitution was the culmination of that revolution. Period.
    I once wrote to Pres. Mbeki to say that while I admired much of his then government’s policies, I could not consider voting for the ANC for so long as it failed to ensure that its members at all levels, understood democracy — which they clearly did not. I received a polite acknowledgement (which is more than one gets today) but no undertaking to do better.
    The sooner that process of education starts, the better — as also the abandonment of ‘cadre’ and ‘comrade’, honorifics which may give the faithful warm and fuzzy feelings but run counter to the idea that we are all citizens of the same country.

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