Crude use of power is cause for concern

What do the following have in common: court challenges to restrict broadcast coverage of debates in Parliament; the challenge by Robert McBride to his suspension as head of the independent police investigative directorate; the announcement by Western Cape Premier Helen Zille of the provincial government’s cancellation of its subscription to the Cape Times; and some of the politics concerning the demand to remove the statue of Cecil John Rhodes from the University of Cape Town (UCT) campus?

The answer is that these events should give us pause as we reflect on the health of our constitutional democracy. At its core, the model of constitutional democracy that this country sought to build at the dawn of freedom 21 years ago was to be based on justification rather than the crude use of authority. It requires respect for the dignity of the choices of all of our fellow citizens and a commitment to ensuring that the social and economic conditions of our society ensure that every person who lives in this country is empowered to implement these choices.

The challenge to the manner in which the live broadcast feed of events in Parliament are controlled – brought before the Western Cape High Court as a result of the restrictive coverage of the State of the Nation address and the eviction of the Economic Freedom Fighter representatives – was dismissed. The court confirmed, however, that the doctrine of separation of powers does not preclude a court from determining this question.

But the policy empowering the National Assembly’s speaker to restrict broadcasts, ostensibly to preserve the dignity of Parliament, has been in place since 2009. Hence the requisite urgency that would justify the grant of interim relief was lacking.

The challenge to the policy will be determined at a later stage. It raises a core question: What rights do the people of South Africa have to see all the public debates in Parliament without restriction? The answer to this question goes to the heart of the model of a democracy in which deliberations concerning the public must be accessible to the public.

The McBride challenge also failed because the court held that to stay his suspension pending a constitutional challenge to the ministerial power to suspend the head of the Independent Police Investigative Directorate would prevent a suspension that may be justified on further evidence. Yet the court noted, without deciding, that there was merit in the argument that, like the Hawks, the directorate should be independent of ministerial control.

This again raises an important constitutional question: Can South Africa have a truly independent body that investigates police conduct if the minister of police can suspend its head when he does not approve of a decision taken by the independent police investigative directorate?

The events that gave rise to these two cases are troubling: both raise serious questions about the government’s commitment to the restraints placed on its exercise of political power. The essence of constitutional democracy is that government does not have unrestrained power. Respect for institutions that protect and promote a culture of justification, whether it be the nation’s Parliament or a body that holds the police accountable to legal service, is critical to the success of the constitutional model.

Zille’s decision to cancel the Western Cape government’s subscription to the Cape Times is equally reflective of conduct incongruent with our constitutional model. Let us accept, under the ownership of Iqbal Survé, the Cape Times and other newspapers in the same stable have embraced ANC policy with enthusiasm and, further, the quality of journalism has declined markedly. That surely does not justify an arm of government to boycott the newspaper, purchased with taxpayers’ money, because it has a different political policy to a transient government.

How does this promote freedom of speech? And how can Zille then argue national government cannot boycott the Mail & Guardian and other truly independent newspapers, either by the cancellation of subscriptions or a refusal to place government advertisements in these newspapers?

This form of determination not to accept the existence of another voice is truly subverting the deliberative model our Constitution was intended to promote.

That UCT should have dealt far earlier with the Rhodes controversy and the bizarrely named Jameson Hall (celebrating Leander Starr Jameson, whose only claim to fame was the raid into the Transvaal Republic that carries his name) is surely obvious. Hopefully a university that now has a significant majority of black students will act speedily and sensibly.

It should also be common cause that the debate about transformation beyond the student population can ensure that the university lives up to its claim to be an African university of world-class excellence. It is in the nature of the anti-Rhodes campaign that concern should be located.

In a constitutional democracy, poo-throwing surely cannot be political protest’s default position. In our democracy, speech, political organisation and association are guaranteed. Why not use these rights?

When student leaders say they are not interested in what the vice-chancellor has to say on the matter, we have reached the death of reason and the end of justification. They are replaced with the mode of “shut up”. When deliberation is not only discarded by students but lauded by certain academics, we meet once more a fundamental threat to the kind of constitutional democracy the nation set out to achieve 21 years ago.

All these events should generate great concern about the construction of a social practice that is essential to the resilience of constitutional democracy. Continue with actions such as those mentioned above, and all South Africa will definitely be in the poo.

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