Constitutional democracy in South Africa - fanciful ideal or tangible reality?

South Africa’s constitution has been hailed the world over as truly revolutionary, yet over the past 19 years, the country has struggled to entrench a culture of constitutional democracy. Judith February and Gary Pienaar look at whether parliament has upheld the constitution, and progress towards the constitutional vision of human dignity.

When it was drawn up, the Bill of Rights in chapter 2 of the constitution incorporated justiciable socioeconomic rights, paving a way for the country to be organised through a separation of powers – though weak – between the Executive, Legislature and Judiciary. It envisaged an ongoing conversation between the three.

The founding principles of the constitution laid down the values that underpin the democratic state, namely accountability, responsiveness and openness, providing a bridge from a culture of authority to one of justification. These values underpin pursuit of the constitutional objectives of human dignity, the achievement of equality, and the advancement of human rights and freedoms. Accountability is necessary because of human tendencies to laziness, error and greed. Accountability from public officials is important to ensure that the central democratic values are upheld in government of, by and for the people. Substantive or political uncertainty remains a positive democratic value. Political leaders who feel relatively more vulnerable to being replaced tend to conduct themselves in a manner more respectful of agreed objectives, rules and standards. Institutional uncertainty, however, is a negative democratic value, implying vulnerability of the democratic system to undemocratic impulses.

Parliament shirks oversight responsibilities

Parliament’s attitude to judicial and other forms of oversight has been largely resistant, and may be discerned from a few examples of its responses to disputes over public involvement in its proceedings. In 2008, it considered legislation that generated widespread public interest when the government introduced a controversial bill to dissolve the specialised anti-corruption unit, the Scorpions. Apparently inconsiderate of these rulings, one committee chairperson suggested that parliament’s overriding responsibility was to approve legislation introduced by the Executive, regardless of contrary views by the public.

Parliament’s attitude to judicial and other forms of oversight has been largely resistant.

The prospect of parliament abrogating its responsibility to apply its mind by not only involving and representing its diverse public, but also physically engaging it in public participation, generated a public outcry. Parliament has, however, recently bowed to
a ruling by the constitutional court concerning the national assembly’s rules, which have been consistently interpreted as requiring the speaker’s consent before MPs could introduce private member’s bills.

Equally consistently, the speaker has been advised against such consent by the committee on private members’ legislative proposals and special petitions. Writing for the majority, Chief Justice Mogoeng held that this interpretation was inconsistent with the constitution and therefore invalid.

The constitution establishes that the state is required to work to improve the quality of life for all citizens and free the potential of each person. An evaluation of the degree of access to those services and opportunities that contribute to achieving human dignity is therefore essential to assess the state of our democracy.
Parliament’s frequent failure to assert either its own authority or that of chapter 9 institutions to take firm action to hold the Executive accountable for non-delivery has been traced to the subordination of its representative functions to the power of the executive.

Towards the constitutional vision of human dignity

The exclusively closed proportional list system of electoral democracy has been identified as the principal reason for the reality that, in the absence of a meaningful, accountable relationship with defined voting constituencies, MPs feel greater responsibility towards party principals who decide on their inclusion in party lists than towards the general electorate.

Among the branches of the state, the Judiciary is uniquely vulnerable to criticism, lacking substantial power to enforce its own decisions. It can perform its functions in a ‘fair and appropriate manner’ only if its ‘independence is safeguarded and respected and when it enjoys legitimacy among a large section of the population’.

Public debate has flared on the meaning and role of the constitution – is it the primary obstacle in the path towards reducing social and economic inequality, or are our socially and ethically untransformed Judiciary, Executive and public servants the reason for our lack of progress towards the constitutional vision of human dignity?

Finest hour or fatal compromise?

Illustrative of the widely divergent views on the constitution’s legitimacy is the De Klerk Foundation’s description of the political settlement expressed in the constitution as South Africa’s ‘finest hour’. Other national leaders, by contrast, assert that it was a ‘fatal compromise’ extracted in unfair circumstances. Plausible explanations for this hostility towards the constitution and the institutions responsible for upholding and protecting it are not limited to considerations of self-interest and the general human dislike of public criticism, perhaps sharpened by the psychological wounds of apartheid’s humiliations.

Those who question the constitution’s legitimacy as an elite pact influenced by contemporary neoliberal dominance are forgetful that the process was far more open to the public than a number of subsequent policy and legislative interventions that undermine basic human dignity, generating disappointment and disenchantment with both the ruling party and the democratic model.

The elitism of the private sector

The private sector has also attracted renewed criticism following the global economic and financial crisis of 2008. SA business is increasingly characterised as elitist, exclusive and resistant to transformation. The laudable motives underpinning the BBBEE policy notwithstanding, criticisms have swelled of its elitist outcomes, and its failure to enforce boardroom transformation.

Opportunistic elements in the NPA

Seeking to avoid the scrutiny of accountability demanded by the constitution, opportunistic elements have increased pressure on the constitution. Former National Public Prosecutor Bulelani Ngcuka declined to indict Jacob Zuma on corruption and related charges on the grounds that the National Prosecuting Authority (NPA) had a prima facie but not a ‘winnable’ case against him.

Ngcuka’s public statement to this effect led to widespread criticism about abuse of authority to Zuma’s reputational detriment. The NPA has been at the centre of public life and debate for more than half of South Africa’s two decades of democracy. The NPA itself, and its independent component units, the Directorate for Special Operations (DSO or Scorpions) and the Assets Forfeiture Unit, for many years led a high-profile fight against organised and white collar crime that began to include in its nets senior political figures.

An independent NPA that prosecutes without fear, favour or prejudice signals that no-one is above the law. It also helps bolster respect for the law and indirectly instil trust in the constitution and the institutions it creates, including the judiciary.

The political system has not yet internalised the responsibility of public representatives to account for their actions and performance.

Accountability of public representatives in question

The political system has not yet internalised the responsibility of public representatives to account for their actions and performance. It has not yet enacted legislation to remedy the continued absence of post-employment restrictions, to regulate the private business interests of public servants, or to render transparent private and foreign sources of political finance.

The impression has been created that accountability is something that needs to be avoided rather than embraced as an integral feature of a constitutional democracy. President Nelson Mandela’s example of willing submission to the jurisdiction of the constitutional court out of respect for its sphere of authority finds few echoes in the conduct and attitudes of subsequent leadership. Instead, trench warfare involving significant expenditure of public monies on ‘litigation by exhaustion’ has characterised the attitude of too many government representatives.

Yet all is not lost. As South Africa heads towards 20 years of constitutional democracy, although uncertain at times, it remains ever hopeful that constitutional values will be embedded to ensure that the societal transformation the constitution envisages becomes a reality for the majority of South Africans.

Authors: Judith February, executive director, Democracy, Governance and Service Delivery programme (DGSD), HSRC; Gary Pienaar, senior research manager, DGSD.