DEFENDING CONSTITUTIONAL DEMOCRACY
- Programme Director, Ms Fazeela Mohammed;
- Chief Justice Raymond Zondo;
- IFAA Acting Director, Emeritus Prof Ari Sitas;
- Acting Deputy High Commissioner of Australia, Ms Justine Jones;
- Ms Tessa Dooms representing civil society;
- Civil Society;
- Academia;
- Colleagues;
- All protocol observed.
I would like to thank The Institute for African Alternatives for inviting me to participate in this dynamic colloquium, at a time of heightened uncertainty for democracies around the world, including the Republic of South Africa.
May I add that were he alive today, the late Advocate George Bizos would have celebrated his 96th birthday today. As one of most effective human rights lawyers, he dedicated his practice to ensuring that the marginalised and voiceless have access to the rights enshrined in the Bill of Rights.
As the voices of the people most affected by a need for policy reform places the Constitution of the Republic under the spotlight, we are pressed with an urgency to better understand the many ways in which today’s theme of discussion, “Democracy can only work if Parliament works”, can be examined and whether the Constitution meets the challenges of today and the future?
Be it known that such a theme reveals a certain duality along the lines of the law of the land, and the innermost workings of those in the driving seat of government. For leaders who represent the most vulnerable and voiceless in society, their loyalty or fidelity to their oath of office comes into question.
To draw out a central theme of the colloquium, we understand that there is a need for parliamentary and electoral reform to ensure that constitutional democracy in our country functions optimally.
Additionally, there is a need to ensure a Parliament where Members meet and perform the tasks written out in the Constitution.
We are aware that strong incentives to ‘toe the party line’ are built into the arrangements of Party constitutions, leaving elected public representatives on a backfoot when it comes to holding leadership to account for fear of discrimination and demotion on the ‘party list’.
As a result, an individual’s political footing takes favour over the essential process of ‘Checks and Balances’ required to make the constitutional system function ideally for the benefit of the people.
This begs the question of whether an alternative system needs to be in place to protect the independence of public representatives and reinforces today’s theme that “Democracy can only work if Parliament works”? For, if we want democracy to work, then the duties of public representatives to the Constitution of the Republic are to be carried out within a structure of direct accountability.
Programme Director,
To unpack these overlapping themes, allow me to propose that we deal with the topic from a premise where the notion of democracy provides a framework from where we can further explore the state, at a conceptual level; and then deep dive into the disparities between cooperative governance and the role of elected public representatives.
Across the world, democracy’s claim of having the sole mandate on the principles of freedom, justice and equality are being tested. As recent history would tell, yesterday’s victims who take on the lessons of their tormentors to heart, often become the villains of tomorrow.
As such, we are cautioned to understand that democracy is not a destination, but a process, and is never guaranteed simply by its arrival or utterances.
Additionally, to pursue constitutional democracy is to acknowledge that it will be in perpetual process – like all democracies.
So, if democracy is under constant construction, then The Bill of Rights which is a defining cornerstone of South Africa’s democracy, is also in a continuous state of becoming.
Chapter 2, Section 7.2 of The Bill of Rights in the Constitution of the Republic outlines how:
“The state must respect, protect, promote and fulfil the rights in the Bill of Rights.” [1]
But only a capable state may enable an environment that respects fundamental freedoms.
Chapter 13 of the National Development Plan (NDP) describes how South Africa needs to build a state that is capable of playing a developmental and transformative role.
That the public service needs to be immersed in the development agenda but insulated from undue political interference.
That staff at all levels must have the authority, experience and support they need to do their jobs, and that this will require a more long-term approach to skills development. Additionally, the NDP illustrates how improving relations between national, provincial and local government, requires a proactive approach to resolving coordination problems. [2]
However, with the current situation we must accept that to improve our national governance system and capacity, we should adapt to make our institutions in all respects more professionalised and procedure based.
The National Development Plan directs us to establish a capable state, but the late Professor Stan Sangweni, who was an expert in statecraft, criticised this call as a conundrum because of the manner in which senior managers are interviewed and selected. He asserted that the whole process lacks rigour and transparency, and that in most cases the interviews are not thorough enough to ensure that the selected candidate is fit for purpose.
He argued that the President should rather delegate the authority to make appointments to the Public Service Commission and that this commission should not itself act as an interviewing panel. Instead, it should put together experts and practitioners in the respective field, who will then conduct the interviews, discuss among themselves and make recommendations. Therefore, the process of selecting and appointing senior managers will be both transparent and rigorous.
Senior managers who are rigorously and transparently interviewed and selected for employment, should then be appointed on a permanent basis as opposed to the current short term contracts.
Governments come-and-go, whereas the administration of the state ought to be permanent.
When we declare that the Constitution of the Republic is the supreme law of the land, we confidently affirm and accept that any other rules, guidelines, laws, obligations, or conduct that are not in line with it, can be challenged and struck down by the courts.
This is possible because, in a constitutional democracy where power is properly shared by the executive, the legislature and the judiciary, the courts are independent and subject only to the law and the Constitution of the Republic itself.
This brings us to the doctrine of the separation of powers.
The Constitutional Court of South Africa offers an explanation of constitutional supremacy and the separation of powers:
“A crucial function of a constitution – and one of the classic features of democracies – is the division of power among the three pillars of government.
“Constitutions protect democracy by separating state power into three arms.
(a) The legislature (parliament, the provincial legislatures and local councils) makes the laws and monitors the executive;
(b) the executive (the president, deputy president and ministers) makes policy, proposes laws and implements laws passed by the legislature; and
(c) the judiciary tries cases and administers justice.
“The judiciary is unique in that it is not elected but is independent. This means no one can interfere in the work of the Constitutional Court and the other courts in the country.
“In practice this means each arm of the state keeps watch over the power of the others. The courts can judge the actions of the legislature and the executive but cannot pass laws. The legislature can make laws but cannot hand down judgments or take executive action.”
However, the principle of judicial review in a constitutional democracy creates the impression that the judiciary has the last word whenever a dispute arises.
We are thus presented with a further balancing act where challenges arise in ensuring that the executive does not wield its authority without being contained by the other pillars of government.
The Report of the Presidential Review Commission on the Reform and Transformation of the Public Service in South Africa, chaired by Dr. Vincent T. Maphai, explains how:
5.3.1 The Constitution
“The contrast between pre-1994 realities in South Africa and current international best practice could hardly be more stark. However, the new Constitutional framework has put into place a new set of principles and institutions that necessitate a move away from the former and in the direction of the latter. In particular, this framework commits government as a whole firmly to the principle of decentralisation, through the establishment of three distinctive but inter-related spheres of government: national, provincial and local governments.
“…A key feature of this framework is the principle of cooperative governance. This requires that the three spheres of government coordinate their actions and legislation, and exercise their powers in a manner which does not encroach on the geographic, functional or institutional integrity of government in another sphere.
To enable provinces and local governments to exercise the powers devolved to them and provide services, they are constitutionally entitled to an equitable share of nationally-collected revenue.” [3]
45% to National. 41% to Provinces. And, only 10% to Local.
So, when returning to the question of whether an alternative system needs to be in place to protect the independence of public representatives with regards to today’s theme that “Democracy can only work if Parliament works”, we must also ask what jeopardises the independence of Parliamentarians?
This calls for us to briefly look at the Electoral Amendment Act 1 of 2023.
Parliament is made up of people on party lists who are elected on the basis of proportionate representation. And, we must recognise that political parties receive public funding to establish constituency offices in an endeavour, as public representatives, to remain in dynamic contact and accountable to the general public.
However, that system is ineffectual. And now the Con Court has directed Parliament to amend this act to allow for independent candidates to contest at provincial and national level as well. How independent candidates will be accountable to the general public without a constituency is still to be seen.
Regardless of whether candidates come through party lists or as independents, they are all requited to still take make a solemn affirmation before the Chief Justice or a judge designated by the Chief Justice, must swear or affirm as follows:
“I, (name), swear/solemnly affirm that I will be faithful to the: Republic of South Africa and will obey, respect and uphold the Constitution and all other law of the Republic; and I solemnly promise to perform my functions as a member of the National Assembly/permanent delegate to the National Council of Provinces/member of the legislature of the province of (province) to the best of my ability.
(In the case of an oath: So help me God.)”
The swearing in ceremony mandates the public representatives to faithfully execute their roles and duties in line with the Constitution of the Republic of South Africa.
One of the most important features of a constitutional democracy, is constitutional supremacy.
The supreme status of the Constitution is set out in Section 2 of Chapter 1 Founding Provisions – entitled “Supremacy of Constitution” and says: “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.”
This means that any other rules, guidelines, laws, or obligations that violate the Constitution, or any conduct that conflicts with it, are not in line with the Supremacy of the Constitution and can be challenged and struck down by the courts.
It is at this juncture that we can presume the overlapping of loyalty and the questioning of fidelity.
On the one hand an MP swears to be faithful, obey, respect, and uphold the Constitution of the Republic of South Africa and on the other hand an MP, for instance as an Party member, declares that they will abide by the aims and objectives of the Party as set out in the Party’s Constitution.
Ladies and gentlemen, certain gaps are exposed and possible frictions for Party Members of Parliament arise because some Party Constitutions are silent and not expressly aligned to the Constitution of the Republic in a manner which makes it clear that the oath pledging allegiance to the Constitution of the Republic trumps the constitution of the party.
Which begs the questions:
- How seriously do MPs take their oath when they become Parliamentarians in relation to what the Constitution of their Party tells them?
- How relevant are the Party guidelines and mandates in relation to MPs’ oath of office made under the Constitution of the Republic?
It is this lacuna which gives rise to the ineffectiveness of Parliament.
If we are to create a democratic culture, if we are to display exemplary conduct, and respond ethically in challenging environments during times of uncertainty, then we must abide by our oaths.
The future of South Africa’s constitutional democracy rests partly with our elected public representatives who should act in accordance with their oath to the Constitution of the Republic with honour, integrity, accountability and dedication for public good.
However, at a conceptual level, it is important to distinguish government from the state because government serves as the face of the state, but only for a term at a time.
The totality of this is invariably referred to as the 6th or 7th Administration and so on.
The reason we draw these distinctions is so that the roles are clear.
And, that the interface between political principals and the administrative wing is also clear and well managed, to prevent any interference in the day-to-day work of the accounting officers.
Whilst we expect public representatives to contribute to the fulfilment of the rights in The Bill of Rights, we are also cautioned to acknowledge that these rights are not necessarily accessed by all of society.
Therefore, the efforts of active citizenry by all sections of society must also work together to make sure that the constitution is not the dead letter of the law and, that democracy and rights are brought to fruition. One’s own intervention as an active citizen within one’s immediate environment and lived experience can make sure that another person is given access to these rights. And, in so doing, make the constitution a truly transformative document and reality for more people.
At the end of the day, it takes all of us to in collaborate to make a constitutional democracy work and that this is a continuous process.
Thank you.
[1] https://www.justice.gov.za/constitution/chp02.html#:~:text=(1)%20This%20Bill%20of%20Rights,in%20the%20Bill%20of%20Rights
[2] https://www.nationalplanningcommission.org.za/assets/Documents/NDP_Chapters/NDP%202030-CH13-Building%20a%20capable%20and%20developmental%20state.pdf
[3] https://www.gov.za/documents/report-presidential-review-commission-reform-and-transformation-public-service-south
