Two months prior to the Constitution’s finalisation date, minority parties are panicking over checks and balances on the future government, writes Marion Edmunds
Disillusion is setting in among minority parties, as they believe the new Constitution will not provide sufficient checks and balances on the power of the future majority party government.
At the same time, the African National Congress is increasingly irritated with minority groups, political and civic, who are demanding greater checks and balances in the final constitution than ANC negotiators think appropriate.
On Tuesday, the ANC was, for the first time since the elections, angry with the volkstaters. Less than two months before the finalisation date for the constitution, the Volkstaat Council has proposed a 10th “Afrikaner” province with exclusive powers, “somewhere near Pretoria”, in a bid to protect the culture of the Afrikaner people from future new South African governments.
The ANC’s anger was provoked as the notion of a 10th province had not been put on the table during bilaterals, and it came as a nasty surprise, said negotiators.
But the ANC’s anger is larger than that, and is directed at more groups than just the volkstaters. As their grip on government gets firmer, and the party’s authority grows, so does its irritation with minority parties who are demanding greater checks and balances get staked into the final constitution.
Senior ANC negotiator Pravin Gordhan said this week: ” We boldly say that minority parties are often concerned not with creating a democratic state, but rather checking the power of the majority party in the interest of the minority groups, which are often racially based. The debate is often masked in democratic terms, but it is frequently used to protect the rights of the privileged.”
Gordhan quoted disputes around the property clause in the bill of rights as proof. He believes the checks and balances are already written into the final constitution in draft form — including the bill of rights, the parliamentary system, the provision for regular elections, the independent judiciary and three tiers of government — indicating there are sufficient checks and balances to ensure democracy in future years.
This is disputed by the Freedom Front, the Democratic Party and, in a measure, the National Party, which is striving to negotiate into the final constitution a mechanism to give minority parties a greater say in decision-making in future government.
The NP had originally held out for a prolonged government of unity, precisely to provide a check to the majority party on executive level, but realising the ANC would never accept this, dropped the idea and is searching, at this late stage, for alternatives.
Senior NP negotiator Roelf Meyer said this week: “We must ensure a mechanism to allow opposition parties an input into the executive, possibly in a number of instances, for example, when declaring a state of emergency, or war or approving the budget.”
Insiders say the NP is also trying to sell to the ANC the idea of a cultural commission which would have a powerful influence on government policy. And this commission would be used as a mechanism to protect minorities. (Meyer is permanently optimistic about the outcome of the bilaterals, and like a good umpire, always gives the ANC the benefit of the doubt.)
“The climate is conducive to compromise and for negotiating. There is a good spirit among parties … we need to negotiate behind closed doors so we can allow politicians to change their minds and positions gracefully.”
Face-saving on all sides is part of the negotiating game, but it is thought the NP is having to do more than any other party. Sources in the Constitutional Assembly say it is the DP, the noisiest of the opposition parties which, reluctant to compromise, digs in its heels the most, at times straining the bilateral mood.
DP negotiator Ken Andrew takes this as a compliment. He believes that the ANC, at many levels, does not hold views conducive to allowing checks and balances.
“Nobody is taking the winner-take-all line, but the ANC does seem to support the view that the majority must take all the decisions, rather than the view that the majority has the majority say in government. These are two different things.”
Andrews says the latest drafts of the provincial powers make a mockery of the provincial goverments acting as a check and balance against the power of the central government. Although the draft is confidential as it is the subject of continuing bilaterals and multilaterals next week, he said: “The latest proposals on provincial power are as good as no protection from central government.” The FF’s Corne Mulder was similarly gloomy about the federal options.
“The proposals make the second house of Parliament a co-ordinating body which looks after the interest of the provinces, rather than a second chamber to check the power of the majority in the legislature.”
The FF is engaging in continued bilaterals with the ANC to try and get a form of protection for Afrikaners written into the constitution, but has a gloomy view that its ideas, which have been on the table since April 1994, will not get a good reception, Mulder asserts: “In the end, the constitution should be written for minorities, not majorities. If you want an inclusive constitution, it must give security to the minorities, because the majority has power in any case.”
Mulder warns that the ANC ignores the minority issues at its own peril and that its focus on nation-building is fostering a false new patriotism which will not last.
His view is supported, to an extent, by political analyst Stephen Friedman, who is also cynical. “It’s natural for political parties to look after their own interest … and this thing has boiled down to the ANC looking on minority participation in government as some sort of trick to bring apartheid through the back door. We will probably be reasonably happy with what comes out at that end — I mean people will not be locked up at midnight as they were in the old days — but future governments, through the constitution, will not reflect the preferences of voters who make up minorities.”
The extent to which parties have negotiated checks and balances on majority power since early January this year, will be revealed when the Constitutional Assembly produces its fourth working draft of the final constitution at the weekend.
One check and balance on executive power, so obvious it tends to get lost in the debate, is the constitution itself, which is the highest authority in the land, and is the citizen’s protection against abuse by any branch of government. This much is supported by all political players and cannot be undermined.