ROPER: So now you'd give the Devil benefit of law!
MORE: Yes. What would you do? Cut a great road through the law to get after the Devil?
ROPER: I'd cut down every law in England to do that!
MORE: Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat?
Robert Bolt – A Man for all Seasons
We are living now in the most testing times since 1994. It is opportune to take stock of some of the problems in our constitutional democracy.
1. The implications of the transition from parliamentary to constitutional sovereignty have yet to be fully worked out. Representative government from the middle of the nineteenth century until 1994 was based on parliamentary sovereignty. Even though most people were excluded from representation, their political formation and expectations were shaped by the system of government in force for a long time. The ultimately successful legal manoeuvres of the government in the 1950s, which opened up the space for the worst excesses of apartheid, were made possible by parliamentary sovereignty. South Africa made the right choice in moving to constitutional sovereignty and with it the much firmer protection of rights.
2. The implications of rights have yet to be fully understood. Rights imply duties. A person’s right creates the duty of everyone else not to infringe it. The more rights, the more duties. It is a mistake, made by some, to regard the duties as a limitation on freedom. On the contrary, they are the condition for the realization of rights, including the right to freedom. In the end, constitutional democracy depends on the commitment of its citizens to the constitution. It therefore requires that citizens temper their gut loyalties and reactions by considering their rights and duties.
3. A transition in the way in which authority is exercised still has to be completed. Under parliamentary sovereignty, the parliamentary question had a particular importance, even in the apartheid years. The practice was imperfect, but the norm – no less relevant to-day - was clear: replies to parliamentary questions had to be prompt, accurate, complete and clear. Helen Suzman was a skilled user of the norm, and managed in parliament to unearth evidence of government abuses in the apartheid years. But the attitude of the government to accountability to ordinary citizens, particularly to citizens known not be supporters of the ruling party, was often arrogantly dismissive. “The Honourable Minister has instructed me to inform you that he is not in the least interested in your opinion”, read one letter. The response of the then Minister of Police to dismay about the death of Steve Biko in custody was: Dit laat my koud .
Old templates of authority die hard. More than a decade after corporal punishment was outlawed in schools, a survey of learners found that 52% of them had suffered it in the preceding year. In days gone by, government officers could get away with spurning accountability. If there is a single lesson to be learnt from the Helen Suzman Foundation’s public interest litigation experience, it is that some still think they can. But the Constitution and the law create a right to require reasons for administrative decisions. Cowboy disregard of duties exposes those involved to trouble.
4. In certain quarters, the argument has been made that the Constitution embodies a sell out of black interests. This view has ambiguous implications for democratic consolidation. The factual basis for this claim is disputable. Contentious points were carefully negotiated. They were considered by a democratically elected parliament between 1994 and 1996. And it is not true that the Constitution makes conservative outcomes unavoidable. Contemporary South Africa is not the same as the South Africa of twenty years ago, and twenty years from now it will be different again.
The desire for constitutional change does not in itself undermine democratic consolidation. As all constitutions must, our Constitution sets out procedure for its own amendment. Several amendments have already been passed. Moreover, the Constitution is interpreted through constitutional jurisprudence, whose development is ongoing. Constitutional jurisprudence clarifies, interprets and educates. The judgement in the Nkandla matter does all three, magnificently. Constitutional jurisprudence responds to changing conditions and understandings, and may even reverse itself on occasions. But what is not consonant with democratic consolidation is the changing of the Constitution by other means.
5. Democratic consolidation is not helped by misleading discourse. One hears references to ‘regime change’ when what is at stake is a possible change in government. The ‘sole authentic representative’ concept of thirty or forty years ago lingers on. But in a democracy, no party can legitimately claim sole authentic representation for itself. The electorate decides on its representation in free and fair elections.
The use of the term ‘revolution’ is more complex. It is used in a variety of ways: the artificial intelligence and robotics revolution, the internet revolution, a revolutionary new washing powder. It conjures up excitement and wonder. This may be trivial and meretricious, as in the washing powder case. Or it may raise new and interesting questions: does use of the internet undermine the capacity for sustained reading? Or it may be fundamental: will artificial intelligence and robotics radically change the world of work, and with it social organization?
The use of “revolution’ in a political context inevitably invokes a historical complex of thought and action. It refers to the overthrowing of a political order, and if that order is democratic, it is completely antithetical to democratic consolidation. The tension between a revolutionary programme and democratic development in ruling circles has not been resolved in more than twenty years of democracy. The lack of resolution blights the quality of our democracy.
6. Testing times are occasioned by two main factors. Difficult global economic conditions are the first. It may be that they improve. It may be that they will offer South Africa an economic windfall, though no windfall is currently visible. But we can hardly wait for a windfall to emerge, and it is possible that global conditions may get worse .
For us, global economic conditions are context. They are circumstances within which national decisions are taken about economic inclusion, that is, about growth and distribution. This is not about a plan or (an incoherent set of) plans. It is about the day to day decisions which affect the economy. The articulation of interests has been such that distributional issues have been front and centre for the last twenty years. It is not that there have not been recommendations – solicited and unsolicited – about how to promote economic growth. It is not that there have not been summits about promoting growth. It is that these have gone nowhere, and the reason they have gone nowhere is that there has been insufficient interest in them. Absent windfalls, the necessary condition for moving beyond our current low growth impasse is the re-articulation of interests into a pro-growth coalition. Democratic consolidation depends on it. We shall have to wait and see whether such a re-articulation is possible and, if so, what the political implications will be.
A renewed interest in constitutionalism offers an opportunity for democratic consolidation. The moment should not be wasted.
Charles Simkins
Senior Researcher
charles@hsf.org.za
