ANC, not JZ, is the real threat to democracy

Competing traditions: The ANC had an ambivalent approach to constitutional democracy – the Freedom Charter on one hand and a two-stage revolution leading to socialism on the other. (Oupa Nkosi, M&G)

Competing traditions: The ANC had an ambivalent approach to constitutional democracy – the Freedom Charter on one hand and a two-stage revolution leading to socialism on the other. (Oupa Nkosi, M&G)

The disturbances during the State of the Nation address caused an explosion of concern about constitutional crises and raised many questions about the resilience of our public democratic commitment.

But the noise quietened down after President Jacob Zuma’s response, a week later, to the questions raised. In contrast to previous occasions, he came across as confident and presidential.

Such a fast shift in public perception may be the result of the view that South Africa’s core problems are caused by one man – Zuma. But the disturbing assault on the sanctity of Parliament during his State of the Nation address cannot be explained away by his conduct. The reason must be found elsewhere – and so, too, for the even more disturbing erosion of free speech by jamming the cellphone signal, which remains inadequately explained.

When a new political order was constituted in terms of the Republic of South Africa Constitution Act of 1996, many of the key political players had only a paper-thin commitment to constitutionalism.

The National Party was a late convert to the idea, and it consented only because it saw a written constitution as a way to preserve some of the ill-gotten gains of apartheid.

The ANC, by contrast, had an ambivalent approach to the implications of constitutional democracy. One of its traditions came from the Freedom Charter of 1955 and the earlier African Claims document of 1943, which contained a commitment to rights and a government required to respect and promote them.

But the rights in the Freedom Charter went beyond the confines of a liberalism that focused exclusively on the rights of the individual in order to promote the collective community of South Africa. The envisaged government, operating within the confines of the Freedom Charter, would not possess unfettered power as had been the case with the NP under apartheid.

Out of this tradition came the ANC’s constitutional guidelines of 1985, which played an influential role in the compilation of the text that now governs South Africa.

But another tradition was also present in the ANC. It was predicated on the idea of a two-stage revolution, the ultimate goal of which was some form of socialist society. It was inchoately developed, but it was clear that the South African Communist Party would be the ultimate navigator of the ship of state.

In practice, a heavy dose of Soviet ideology, secrecy (admittedly in part the result of the apartheid state’s omnipresent security police) and the fetish of the omniscience of the communist party would ensure that constitutional democracy – a liberal ploy to retard the exercise of party power – would be rejected.

Of course, this is a rough distinction and requires a more nuanced analysis. But, at the root, these were the competing traditions within the liberation movement when democracy dawned in 1994. The Freedom Charter narrative triumphed under the leadership of Nelson Mandela. Hence the Constitution was born, independent people were appointed to key positions, and the nation followed accordingly.

Twenty years later, that tradition has been superseded by its opposite. The change did not come overnight. The Thabo Mbeki presidency nibbled away at the constitutional edges as the seeds of an imperial presidency were planted. And, over the past few years, the assault on key components of the state, as conceived in the rights tradition, has redoubled.

Under Mbeki, Parliament was relegated in importance. Little evidence of meaningful legislative oversight of the executive could be seen. As a consequence, only the courts now play this role. Only last week the high court in Pretoria found that the suspension of the Hawks Gauteng head, Major General Shadrack Sibiya, was irrational and taken in bad faith.

The National Prosecuting Authority (NPA) has long been subjected to political interference, and the desire for executive control has grown exponentially.

In summary, the attempt to dismiss Lieutenant General Anwa Dramat as leader of the Hawks and to remove deputy chief commissioner Ivan Pillay from the South African Revenue Service, plus the crisis over NPA appointments and the questionable appointments in the police force, must all form part of any analysis of the events during the president’s State of the Nation address. The interests of the ruling party, and in particular those close to the real repositories of power, now trump political power in constitutional form.

The citizenry should not lose focus on what came before one conciliatory speech by the president. A few more years of this kind of rule and the damage to the carefully constructed constitutional structure could be permanent.

At present, the courts continue to play a crucial countervailing role but, without the support of an active civil society and greater vigilance from the media (significant parts of which have already been captured by the ruling bloc), the tradition of the Freedom Charter may well be relegated to the dustbin of history.

Serjeant at the Bar


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