False divide posed between legislature, executive and PP

Rhodes>Perspective>2014 Archive

WHILE many eyes have been glued to the drama that played out in parliament
during the debate of no confidence in the speaker, it is possible to miss
the structural implications, the erosion of the standing of parliament and
other public institutions, potentially crippling democratic rule.

Democratic rule comprises a range of elements and meanings, some of which
are contested, but for the purposes of this discussion it is restricted to
government by elected representatives, from whom the executive is chosen.

Personally, I believe it is better to understand democracy in a wider sense
including popular grassroots structures, but since these are not directly
regulated by the constitution they fall outside the scope of this inquiry.

It is important to understand the historical context of the current
discussion. In the course of the struggle against apartheid the ANC and its
allies, and increasing numbers of other democrats, rallied behind the
demands of the Freedom Charter, whose first clause reads "The People Shall

In order to defuse the demand for universal suffrage a range of schemes were
devised by the apartheid government, the "Buthelezi commission" and various
scholars to limit its impact via ethnic representation or protection of
"group rights", which were in fact minority privileges.

Attempts were made to incorporate veto powers where any actions of a
democratically elected government were to encroach on these "rights".

Consequently when negotiations were initiated opponents of apartheid
suspected potential attempts to curtail rule by the majority.

But much of the discussion around the constitution, although entailing
consultation, was fairly specialised. Not all who were involved in the
struggle were conversant with the new relationships established between
various constitutional institutions under the constitution adopted in 1996.

In this light it is important to restate how one understands the
relationship between a democratically elected government and various checks
and balances that are part of current constitutional government.

Any democratically elected government operates within the constitution. It
is charged with acting, whatever the specific policies it follows, to
advance constitutional goals and within procedures that ensure that those
goals are realised. It cannot pursue private objectives or irregular
activities inconsistent with those purposes, which it is charged to uphold.

The judiciary and various chapter 9 institutions are not there to "second
guess" the power of the majority. The judicial role is to ensure that
constitutional obligations to realise democratic rights for all - including
life itself, dignity, meeting basic needs and freedom of speech - are not
undermined through any misuse of power. Such irregularity may be through
errors made in good faith or conscious attempts to benefit private
individuals or members of government.

In this context, how do we interpret various attacks on the judiciary, its
depiction as a counterrevolutionary force and the exercising of powers that
frustrate the objectives of parliament and government, and hence the
electorate? How do we interpret the exercise of powers of the public
protector and other chapter 9 institutions?

My understanding is that claims that these institutions, especially the
judiciary and public protector, stand in the way of a transformative
programme or wittingly or unwittingly aid an "anti-majoritarian liberal"
programme are misplaced.

What is ignored is that the constitutional provisions that these
institutions are charged to enforce or, on the basis of which they act, are
not of purely procedural significance.

It cannot be argued that when chapter 9 institutions or the judiciary flag
procedural violations they are using mere technicalities to frustrate the
transformatory intentions of the government.

On the contrary, the Constitution itself has transformatory goals at the
heart of the injunctions in it that ought to guide the activities of all
state organs

Consequently, where the Constitutional Court is called upon to pass judgment
on the actions of an organ of government it is not there to simply police
procedures. In considering the observance of procedures it simultaneously
decides whether the constitutional powers entrusted to institutions have
been used to further the transformative goals of government or purposes
incompatible with that.

Obviously there are court decisions that have directly ensured that some of
the rights laid down in the Bill of Rights are realised. But insofar as the
Constitutional Court or the public protector have addressed irregularities,
as with the public protector's report on Nkandla, what we see is ultimately
related to ensuring that the transformative goals of the state are not
frustrated by misuse of powers or funding.

It is well known that some of the money used to enrich President Jacob Zuma
at Nkandla was earmarked for meeting basic needs. Consequently there is a
very direct relationship between the irregularity identified and the
capacity to realise a constitutional duty that is transformative.

What we can therefore conclude is that a false dichotomy is posed between a
supposedly transformative legislature and executive on the one hand, and a
court and public protector whose powers stand as obstacles to such change on
the other.

In fact, the courts and the chapter 9 institutions would be remiss if they
were not to act to enforce transformative goals, as defined in the

In truth, the questions that appear symptomatically as "drama" go to the
very fabric of our democracy. It is urgent that we defend this.

Article by: Raymond Suttner.

Article Source: Daily Dispatch