Countering Ken Owen on the state of the nation (cont.)
It is beyond doubt that it is indeed necessary to cherish and uphold the Constitution in these troubled times. The spectre of having to march down Adderley Street as Chief Justice Albert Centlivres did with the ladies of the Black Sash in the fifties, is not, however, a fitting comparison nor is it a particularly viable strategy. The battles of the twenty first century will be waged in our democratic multi-party democracy, our elected Parliament, in the Courts and in the boardrooms of business and civil society in the nation. This is what constitutionalism is all about: it puts limits on the exercise of power through the checks and balances as well as the separation of powers in the Constitution. The national accord, which informs the Constitution, was thrashed out by the representatives of the overwhelming majority of the people over a period spanning the years between 1990, when the liberation movements were unbanned, to 1997 when the final Constitution came into operation. It is fundamental to the Constitution that its putatively immutable founding values can only, at worst, be changed if 75% of the elected representatives of the people would have it so. With the ANC alliance down to 65% and Cope still in its infancy, it seems unlikely that a majority of this size is going to be assembled any time soon. Ordinary amendments require a two thirds majority, so opposition support will be needed to carry those constitutional changes contemplated by the government. Any law or conduct inconsistent with the Constitution is liable to be struck down by the Courts as invalid.
There is nevertheless a striving for hegemonic control of the "levers of power" on the part of elements in the ANC alliance, particularly those who owe fealty to Marxist and socialist ideology. This desired hegemony and the notions of constitutionalism are mutually contradictory. Limiting the exercise of political power through accountability mechanisms such as Parliament, an independent judiciary which is subject only to the law and the Constitution, a judicature in which prosecutors function "without fear, favour or prejudice" and a full panoply of independent Chapter Nine institutions such as the Auditor General, the Human Rights Commission and the Public Protector is basic to constitutionalism. These limitations are also anathema to the notions of hegemony popular in certain quarters in the alliance which has served as our government since 1994.
Cadre deployment has taken its toll on the ability of the public service to actually deliver services to which our people are entitled. This practice in the public service itself has been ruled illegal in the High Court and the ruling has not been appealed. Undoing the effects of Mbekian cadre deployment is one of the major tasks facing the incoming administration. It is the best way to get the public service to work and may involve the dismissal of large numbers of "deployees" who float around in the public service with no job description and no duties other than to look out for the interests of the political party which deployed them. In Mpumalanga, fully 60% of the local government employees are said to fall into this category. The Public Protector has been considering a complaint about this practice since 2008, it is to be hoped that some useful recommendations will be forthcoming from him shortly.
The best way to counter the striving for hegemony is via parliamentary debate, economic or moral pressure and, as a last resort, litigation. Already there are signs that this type of approach, and "one size does not fit all", is being used to increasingly good effect. The success of the communities which resisted incorporation into provinces in which they did not wish to live, the withdrawal of expropriation legislation, the court victories of the TAC and the Rail Commuters Action Group all suggest that marching in street protests has limited efficacy these days. There are more effective ways of claiming guaranteed rights and constitutional protections than marching. If the fundamental differences between hegemonic control and constitutionalism are constantly highlighted it becomes increasingly difficult for government spokespersons to support the Constitution and the hegemonic tendencies credibly at the same time.
In defence of the ANC, it is also fallacious to suggest that the removal from office of President Mbeki was a putsch. He ought to have resigned the day after his own party lost confidence in him by voting as it did at Polokwane. Instead, he lingered on with the blessing of Jacob Zuma, but without a proper support base, until his recall by his party nine months later. He was not obliged to accept the recall. He could have insisted on an impeachment hearing, a vote of no confidence or the dissolution of parliament. Any one of these three constitutional devices, were at the disposal of the ANC and could have been invoked had Mbeki chosen to buck party discipline. He did not, thereby rendering it unnecessary to resort to the available constitutional means of deposing him. Matthews Phosa was in fact considering the vote of no confidence route when the announcement came that Mbeki would go quietly. He did so as he knew that he would not be able to survive a vote of no confidence – a loyal cadre to the last. This did no damage to the structures of the Constitution and was a lot less messy than the procedures it offers. The ouster of Mbeki was perfectly constitutional and the unavoidable by-product of his own failure to retain the support of his own party.
Without trying to deal point by point with other disturbing features of the state of the nation raised in Ken Owen’s piece, it is perhaps appropriate to point out that the demise of the Scorpions is not a completely done deal as Bob Glenister has again challenged the constitutionality of the legislation in question, the decision to withdraw charges against Zuma is on review in the High Court and the disciplinary infractions of wayward judges are being dealt with in the courts and before the Judicial Service Commission. The short-comings of our party list proportional representation system are also under political scrutiny as are other questionable initiatives concerning the media and the judiciary aimed at securing that elusive hegemony. It is the diversity of our nation and the watchfulness of its civil society organizations and loyal parliamentary opposition that will prevent regression. Everyone is entitled to be justly proud of our Constitution, and to invoke it whenever the need arises.
Paul Hoffman SC
Senior Advocate of the High Court.
Cape Town