For democracy to work

2019-11-27 06:00

THIS year marks 25 years since the inception of our democratic dispensation which commenced on April 27, 1994, with the Interim Constitution.

In this period, we have made progress as an operative but fledgling democracy which has progressed in providing the majority in South Africa with access to services that had been denied most of them under white minority rule. In particular, housing, electricity, sanitation and virtually universal basic education have been provided, even if the quality of such leaves much to be desired.

To these must also be added the belated but nevertheless more or less successful roll-out of the world’s largest antiretroviral treatment plan to combat HIV and Aids.

Also of vital importance is the system of social grants given to more than 17 million recipients. All of this, inter alia, represents significant work in progress for an operative democracy.

Despite the progress that has undeniably been made, South Africa finds itself in a state of chronic economic and political crisis. The ANC, headed by President Cyril Ramaphosa, is deeply divided between two apparently irreconcilable factions, one in favour of the National Development Plan and the other apparently sympathetic to the radical National Democratic Revolution.

The present crisis is to a great extent the result of the conduct of the Jacob Zuma presidency and so-called state capture, which in effect was a kleptocracy that facilitated the theft and defrauding of the state coffers of billions of rands by unscrupulous individuals, to the inordinate disadvantage of effective service delivery to essentially the poor. Much of this discreditable conduct has been exposed in evidence before the Zondo Commission of Inquiry into state capture. In light of the above it is considered essential that we as a nation, must get back to the basic discipline required by our democratic Constitution. Our Bill of Rights is one of the most progressive in the world, encapsulating both civil and political as well as socio-economic rights such as housing, health, education and affirmative action. Virtually none of these rights is absolute. This means that they involve a corresponding responsibility. So, for instance, freedom of expression in section 16 of the Constitution does not extend to propaganda for war, incitement to imminent violence or race hatred that constitutes incitement to cause harm.

Furthermore, the Bill of Rights contains a limitation clause and internal modifiers, as provided, for example, in section 17 which says: “Everyone has the right, peacefully and unarmed, to assembly, to demonstrate, to picket and present petitions”. The words “peacefully and unarmed”, indicate that those who wish to demonstrate politically, which is their right, have the responsibility to do so without violence. This applies in general to virtually all other rights mutatis mutandis — what this means is liberty is not licence. It also means in a democratic Constitution that the rule of law applies. All people in our state are duty bound to obey the law. This is not an option. Freedom cannot exist without obedience to the law. This requires discipline, without which a civilised society cannot exist. So, for instance, the carnage on the roads is due to the fact that the laws of the road are not being complied with, and the result is thousands of lives are being lost. It is imperative that in the national interest, obedience to these laws be enforced and drivers are disciplined.

As far as the economy is concerned, fiscal discipline must be instituted, however painful this may be. The inordinate debt incurred by the SOEs in particular has virtually bankrupted the state. The endeavours of both Ramaphosa and Minister of Finance Tito Mboweni, in their efforts to effect such fiscal discipline, need to be supported and not undermined if the economy is to be restored to a healthy state.

The Constitution gives to the executive, the president, ministers and members of the administration, power to govern the state and its people. This power is not unlimited and must be exercised in accordance with the Constitution, which requires “accountability, responsiveness and openness”. This demands that those who exercise power in the state must be people of integrity and competence who fulfil their duties in the public interest and not for personal gain. As a parliamentary democracy involving a multiparty system, Parliament as a whole and in particular opposition parties, have an indispensable oversight role in relation to the power exercised by the executive and administration, to ensure it is exercised in accordance with the Constitution. This by its very nature must be done by robust and vigorous debate, subject to the rules of Parliament and not by undisciplined pandemonium as orchestrated by the EFF.

During the period of the Zuma presidency, oversight was defective. Freedom is not incompatible with discipline and responsibility. Indeed they are essential for it. They also need to be restored to departments of government. This is essential if we are to remain an operative democracy and not become a failed state

• George Devenish is professor emeritus at UKZN and one of the jurists who assisted in drafting the Interim Constitution in 1993.


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