Democratic South Africa was born around a bargaining table. The stakes were as high as they get, the mutual antagonism was evident, the pressure enormous – yet, somehow, an accommodation was reached. And this accommodation, later firmed up and detailed by the constitutional assembly that drafted the Constitution, has stood the test of time … so far.
Over the past few months, the matter of President Jacob Zuma’s private home at Nkandla – and the issue of whether he should reimburse the state for some of the money it spent on “upgrades” there – has escalated. It is widening the cracks that have begun to show in the legal framework that came out of the process leading up to a truly democratic South Africa with a majority government.
In its investigation into the Nkandla matter, the ad hoc parliamentary committee (the third of its kind) tasked with this job chose to examine the vexed Nkandla issue not only in the documents but also by means of visiting rural KwaZulu-Natal in a quest for primary information. This action appeared to show commendable engagement with the issue – yet, at the same time, the committee actively refused to listen to the constitutional body at the heart of the matter: it would not so much as give the public protector, Thuli Madonsela, who wrote the most comprehensive report on Nkandla, a response when she asked to be heard by the representatives of the people.
Nor, as far as Madonsela is concerned, has Parliament given her a proper hearing on the budget for her office. She and her team will not be able to do their job without decent funding, and it must be asked whether the executive and the legislature truly want her to do her constitutionally mandated job.
In three weeks’ time, Zuma is due to meet the judiciary to discuss concerns that peaked after leaders’ comments about judges overstepping the bounds of their domain when they ordered that Sudanese President Omar al-Bashir, wanted for war crimes, be arrested in South Africa. The temperature of the debate on the role of the judiciary has risen with each reference by a government official or ruling alliance functionary to “activist judges” or “anti-majoritarian rulings”.
The meeting with Zuma was arranged only after Chief Justice Mogoeng Mogoeng took the extraordinary step of going public to address the apparent antagonism between the two branches of government. These two arms of government, which should be having an ongoing conversation, have now reduced their out-of-court contact to a formal engagement reminiscent of bilateral negotiations between two nation states.
Then there is Parliament, which exists to facilitate discussions between groups with radically different points of view. What should be an arena of robust intellectual debate about policy and governance has become a place of physical confrontation. Arguments escalate instead of being resolved.
Had the underlying attitude common to these failures been dominant in the early 1990s, Cyril Ramaphosa and Roelf Meyer would have sat in splendid isolation, locked in the fortresses of their respective ideologies as they hurled smears and slogans at one another while the country burned around them. But they did not, and an historic agreement was reached.
Perhaps the transitional negotiations succeeded because failure was not an option. And maybe today, facing the quarter of a billion rand spent on Nkandla or the failure to arrest al-Bashir, the stakes don’t seem as high. Yet they are.
South Africa’s constitutional crises are grinding along so slowly as to be mostly imperceptible, but they are grinding on nonetheless. Armed groups may not be facing off in the streets, promising immediate bloodshed, but over time the failure to create an environment in which state watchdogs can do their jobs portends a frightening toll on social cohesion, accountability and the proper functioning of our democratic, constitutional state.
We must address our national failures in education, healthcare, employment and the economy as a matter of urgency, but part of that project is to establish an equipoise between the judiciary and the executive – and between Parliament and the public protector. An accommodation must be reached. Just as at the time of Codesa, failure is not an option.
The ANC thinks the answer is to impose its will and ignore dissent. The Democratic Alliance believes the solution is a change of governing party in cities, provinces and eventually nationally. The Economic Freedom Fighters use ever greater militancy to make their demands. Civil society wants to impose strict constitutionalism, if need be with the edge of a judicial sword. The new left marches and protests to push for change. Yet far too many South Africans believe that if they simply keep their heads down, everything will be okay.
Our short democratic history indicates they are all wrong. The only formula we know to work is one involving genuine conversation, a willingness to compromise, engagement rooted in reason rather than fury, and the starting assumption that no one group has all the answers – but that a sufficiently diverse group is wise beyond measure.
The shared goal is the greatest benefit to the greatest number of people, not individual advancement or subservience to one party’s vision. Real conversation implies the possibility of conversion to positions not previously held, and that may be scary – but to avoid the conversation, and to ignore the constitutional implications of Parliament’s dismissal of the public protector, is simply cowardice.