Constitutional Hill

Gay Cabinet ministers: So what’s the big deal

Several media outlets reported this week that Lynne Brown became the first openly lesbian cabinet Minister in South Africa after President Jacob Zuma appointed her as Public Enterprises Minister on Sunday. In an ideal world the sexual orientation of a Cabinet Minister – like that of any other person – would be irrelevant. But we do not live in an ideal world.

I am deeply ambivalent about the ritualised staging of confessions which require some of us to make public declarations about aspects of our lives that are deemed to be different from a deeply entrenched norm.

If you happen to be gay, lesbian or HIV positive, for example, it is widely expected that at some point you will “come out of the closet”, which is often equated with making the requisite tearful “confession” to your family and friends and, later, an endless set of often nervous but dry-eyed declarations to members of the larger community.

Sometimes your “confession” is rejected out of hand or used to vilify and further marginalise you or to discriminate against you. Sometimes the “confession” leads to genuine and heartfelt questions or encouraging comments by well-meaning friends and acquaintances.

It matters not whether those who hear the confession are sympathetic or antagonistic. What matters is that you are prodded into confessing that you are different from the desired norm, from a supposedly coveted standard of human existence.

Much like a devout Catholic who is expected to confess his or her sins to either a stern or sympathetic but always elaborately frocked priest in a confession stall, you are expected to go through the ritual that confirms your difference and inherent peculiarity.

This ritual reinforces and perpetuates deeply held assumptions about being gay or lesbian: that your life is potentially difficult or filled with struggle (in my own case this is an assumption that is spectacularly wrong); that you are either a bad person or strangely brave for being able to deal with this loaded deck of cards that fate had dealt you.

When I am required to “confess” my homosexuality or HIV positive status I am required to play a game that results in me having to confirm that heterosexuality and non-HIV status are “normal” (or at the very least, the norm).

My confession, then, both signals and reinforces my perceived “otherness”. It imbues my invented “otherness” with singular meaning and provides yet another discursive tool that can be used by others to justify my marginalisation and oppression.

That is why I now try to avoid making confessions about these aspects of my identity. Instead, if I think it would be politically important to convey this kind of information about myself (or on a personal level, if I think I need to establish a measure of intimacy with someone else) I “accidentally” drop facts into a conversation that reveal more about who I am.

Talking about rugby with a colleague or acquaintance? Easy to say that although I am not sure whether he is a good fly half, I do think Kurt Coleman is exceedingly attractive, then telling the person about that time my father took me to watch the Springboks play at Ellis Park. Talking about the coming weekend? Easy to mention my romantic dinner with Lwando, then talk about my favourite restaurants.

Complaining to a colleague about being overworked? Easy to mention my visit to the doctor to do my bi-annual blood work or how my ARVs make me dream the most wonderful but tiring dreams, then talk about my computer screen that seems to be on the blink.

In short, I tend to avoid the “confessional” style of talking about my sexual orientation or my HIV status because I fear that the language of confession tends to erase the singularity of my existence as a human being and sets up a hierarchical opposition between “normal” people and poor “abnormal” me.

In an ideal world, this would scarcely have mattered. After all, in an ideal world the only normal thing about any human being would be that none of us are truly normal.

But we do not live in an ideal world.

We live in a world in which heterosexuality is deeply embedded in our culture as both normal and desirable. Conversely, the idea that homosexuality is wrong, shameful, strange or undesirable is also deeply embedded in our culture.

Because the notion that heterosexuality is desirable is so deeply entrenched in our culture, the way it permeates and infiltrates our existence becomes invisible. People tend not to notice how heterosexuality are ceaselessly advertised and promoted (almost always as normal, pure, desirable – few people mention that Adolf Hitler was straight and nod knowingly to imply this says anything about heterosexuals as a group) while homosexuality is silenced or erased, except when it is made visible to try and affirm the belief in its abnormality.

While gay men and lesbians are often told not to “flaunt” their sexuality by, for example, telling others about who they love, who broke their hearts or who they had slept with on the weekend, heterosexuals shamelessly get to “flaunt” their sexuality every day and this is called life.

At shopping malls heterosexual couples walk hand in hand, proudly advertising their heterosexuality. At the office, colleagues out themselves as straight almost as soon as you meet them for the first time, dropping not-so-subtle hints about their husbands or wives or partners in the tearoom or at other informal gatherings.

Politicians, sports stars and actors parade their heterosexuality for all the world to see, having pictures taken at their weddings (apparently You magazine actually pays “celebrities” to have their wedding pictures published) and appearing at the opening of Parliament or a new movie or at an awards ceremony with their different-sex partner on the arm.

This is the world we live in: relentlessly advertising and promoting heterosexuality; relentlessly making the rest of us invisible.

One way of being in the world (one man and one woman in love to the exclusion of all others) is valorised, incessantly promoted and rather optimistically and disingenuously lauded as an ideal that every person should strive for in order to attain eternal or at least temporary happiness.

Other ways of being in the world are vilified or erased through embarrassed or enforced silence, or “othered” by well-meaning people who insist on telling you that they have no problem with homosexuality – thus affirming that they think there is potentially something profoundly disturbing or at least strange about two men or two women loving each other, something that they are broad-minded enough not to have a problem with.

It is exactly because we live in this far from perfect world that it matters profoundly when an openly lesbian politician is appointed to an influential Cabinet position. I am not suggesting that Minister Brown herself should make a big deal out of it.

Because of my ambivalence about the politics of “confession”, of coming out, anything she says on the subject would have the potential to be counter-productive.

But when openly gay or lesbian individuals (or people living with HIV, for that matter) happen to be powerful politicians, sports stars, actors or other influential individuals like judges or business leaders, they become potential role models to others who might have internalised widespread societal prejudices and might previously have believed that being gay, lesbian is somehow shameful, something to hide from others.

Moreover, because such individuals have a distinctive presence in public life and are strongly associated with the characteristics that made them well known (their acting talent, their political acumen, their sporting prowess), people who would usually obsess about their sexual orientation might begin to look past this one aspect of their lives and see more of the whole person there.

When gay men, lesbians or bisexuals are appointed to important positions it also signals to the wider society that there is in fact nothing abnormal, shameful, surprising or undesirable about people who happen to love differently from themselves.

For these reasons I think it is more than noteworthy that Minister Brown has been identified as a lesbian. In another world, a world in which a person’s sexuality (whether he or she is gay, lesbian, bisexual or heterosexual) would be of no interest or importance to anyone in society, it would have been silly to take note of and report on this fact.

In the world we live in, it is far from it.

Rights and law: The untold, human stories

Oppressive legal rules and regulations can have a devastating effect on the lives of ordinary people. Conversely, ostensibly emancipatory legal rules and regulations – including rules and regulations aimed at promoting and protecting the human rights of all people – seldom provide an instant cure for the irrational fear, ignorance, greed, arrogance, superstition, stupidity and hate that lurks in the hearts of some people and lead them to marginalise, vilify, belittle and even assault or kill those who they perceived as being “different” from themselves.

After 1948 race classification and pass laws (reflecting the racist prejudices of the majority of white South Africans) helped to formalise systemic racial discrimination and instantly turned the majority of citizens into potential criminals.

These Apartheid laws did not create racism. Nor did they create the belief – widely shared by many who took part in and benefited from the colonial project – in the inherent superiority of white people.

They simply formalised the logic inherent in the project of colonialism and placed the full might of the state behind efforts to enforce the irrational belief in the superiority of the settlers – the very group whose brutality and cruelty led to much suffering among indigenous people on our continent.

These legal rules had a devastating effect on the lived experience of black South Africans. Until resistance to Apartheid made the enforcement of many of these laws difficult, if not impossible, they could be effectively enforced at least partly because they broadly reflected the values and attitudes of the ruling white elite.

As we all know, in 1994, when South Africa became a democracy and we adopted a justiciable Constitution that outlawed discrimination based on race and affirmed the inherent human dignity of all, it did not miraculously change the material conditions in which people live or the vast economic and social inequalities between many black and white people.

Nor did it miraculously lead to an end of racism and racial discrimination or to the dismantling of the structures, ideologies and beliefs that formed (and, to some degree, continue to form) the basis for racial exploitation and marginalisation of black people in South Africa.

This suggests that the law is a particularly powerful tool when it is used to regulate or enforce the beliefs and values of the economically, socially and politically dominant group in society. But, I contend, law is far less effective as a tool for social change when the legal norms embedded in it do not necessarily reflect the beliefs and values of the dominant social, economical or political class in a society.

The formal legal recognition of human rights norms (which represent an ideal that are often at odds with the beliefs and values of a sizeable section of the population) in the form of a justiciable Bill of Rights, are therefore not always as effective in changing the attitudes of citizens.

Despite this, I continue to believe in the strategic use of (and appeal to) human rights norms. In the right place at the right time on the right issue, specific human rights norms can help to protect the inherent human dignity of everyone. But in the absence of political leadership championing these “imposed” norms and in the absence of an active civil society and media promoting these norms, real, fundamental change will often be slow.

I would argue that it is because of this complex dynamic that profound strategic, ethical and practical challenges confront anyone in South Africa or in the so called West who wishes to deploy a human rights discourse to confront homophobia on our continent.

We have to be honest and acknowledge that – sometimes for good reason – human rights are often demonised in certain parts of the world as embodying normative commitments that reflect a specific cultural and racial view of the world, a view that is dominant in the very countries that committed the crime of colonialism.

I don’t think there are easy answers to deal with these challenges. It all depends who speaks, where they speak and about what, I would guess.

But this difficulty does frame the discussion of LGBT rights in South Africa and the rest of the continent.

Not that the matter of protecting the inherent human dignity of gay men, lesbians, transgendered and intersex individuals and gender-nonconformists is not profoundly important and urgent.

Take the Ugandan Anti-Homosexuality Act as an example. This Act reflects the homophobic attitudes of a majority of people living in Uganda. A recent survey concluded that 93% of Ugandans believed that homosexuality was immoral while only 1% believed it was acceptable.

The Act is both shocking and conceptually peculiar. It defines a “homosexual’’ to mean “a person who engages or attempts to engage in same gender sexual activity” and “homosexuality” as same gender or same sex sexual acts. Given the obviously constructed nature of gender (as opposed to sex which is supposedly based on biological characteristics) it is unclear how a judge in Uganda will be able to decide what the “gender” of an accused person or their sexual partner is.

Section 2 of the Act states that a person commits the “offence of homosexuality” not only if he or she actually engages in sex with somebody of the same sex (or gender!) but also if he or she “touches another person with the intention of committing the act of homosexuality”. “Touching” is defined as including touching with any part of the body; with anything else; through anything.

This means that kissing, fondling, caressing “with the intention of proceeding to have sex with somebody else of the same sex” (or gender), commits a crime. If convicted, the person must be sentenced to life imprisonment. The law could thus require a court to sentence a person to life imprisonment for kissing or touching another person.

The Act also states that a person who attempts to commit the offence of homosexuality commits a felony and is liable, on conviction, to imprisonment for seven years.

This means if you attempt to kiss or caress another person “with the intention to commit the crime of homosexuality” you are guilty of a crime and must be sentenced to seven years’ imprisonment.

The Act states that a “victim” of homosexuality cannot be penalised for any crime committed as a direct result of his or her involvement in homosexuality. This means that a person who claims to have kissed or caressed somebody against his or her will is a victim and will not be convicted.

This section does two things: first, it allows one of two parties to a sexual act to protect themselves against prosecution by claiming to be the victim which renders it more likely that one person will testify against another. Second, if you assault or kill another person because you alleged the person allegedly tried to have sex with you, you cannot be penalised for this. It is a legal provision that endangers the lives of every Ugandan who experiences same-sex sexual desire.

The Act further states that a person who purports to contract a marriage with another person of the same sex commits the offence of homosexuality and shall be liable, on conviction, to imprisonment for life.

Hopefully many South Africans would be horrified or at least slightly disturbed by the provisions of the Uganda Act which sanctions the persecution of gay men, lesbians, transgender and intersex individuals by the state.

When we turn our gaze northwards and condemn such forms of state-sanctioned persecution, the danger is that we may lose sight of the fact that neither our wonderful Constitution nor the laws enacted to give effect to it always protect our gay and lesbian brothers and sisters in South Africa.

This is so because neither the Constitution or the law, nor the occasional seemingly half-hearted statements of some of our politicians have managed completely to turn the tide against the deeply entrenched homophobia of many South Africans. A recent survey found that 62% of South Africans say that homosexuality is immoral while 18% said it was acceptable.

This attitude can be deadly. A column, written by my friend Herman Lategan and published in Rapport newspaper last Sunday, provides a deeply troubling reminder of this. I leave you with my translated extracts from his column:

It happened a few months ago, but the incident still nags at me. Maybe because it hardly caused a ripple.

Why would it?

He worked and lived in Ceres. Fruit growing district, the smell of apples and pears at harvest time. On cold winter’s mornings, light snow, smoke curling from the chimney’s of the small farmworker houses.

On Saturday 22 March David Olyne (22) arrived at his work, “Family Food and Meat Market”. His manager and friend, Heather Muller, speaks with a soft voice over the phone, in birdlike beautiful Ceres Afrikaans.

“He was sad that day,” she says, “because the previous night he was at a party where somebody broke his heart.

“I told him he should not be so down, I will allow him to go home early, then he could tell me everything about the party on Sunday.”

He left work. His hair still looked so beautiful.

That Saturday night close to the dam, a group of teenagers sat drinking when a man invited them to come and watch him kill a “moffie” (“faggot”).

According to news reports, he was already bloodied and tied up with barbed wire when the teenagers arrived on the scene.

The attacker cracked open David’s head with a rock. He then jumped on his head while shouting “voetsek”.

The young man groaned. Then the attacker took branches from the tree and placed it on top of him, before lighting it.

The teenagers (14-18 years old) left and did not say a word. It was only the next morning that somebody went to check whether David was still alive and then alerted a woman. It was the woman who told the police about the mutilated body.

On his Facebook page, which is still “live”, there are several pictures of David, also one in which he cracks a smile wearing huge sunglasses.

One of the last posts on the page was done on 3 December 2011, also a Saturday night. “’n lekker aandtjie uit gehad .nuw w3 wek wek wek (sic).” (Had a great night out. New week. Wek wek wek.”

“He was my left hand and my right hand,” Heather tells me on the phone.

“Ooh he could make the best coffee and we always had sooo much fun laughing together.” As a lark David sometimes dressed in drag.

His mother and father do not own cell phones and work respectively as a farm worker and a domestic worker.

“The mother who raised him, a white woman in town, did not want to go and identify his body,” Heather says.

“She was too upset, she wanted to remember him the way he was. So I went to the morgue. David had been badly burnt. From his hips to his head and his hair had also burnt off, except for a tiny tuft of hair right at the top.”

“And so, you know, I still thought,” says Heather, “that same hair which was his pride and joy, now there was hardly anything left of it. God, my dear friend, what did you do to anyone? Nothing.”

“And now… all that remains of his pride is a small tuft of hair.”

Nkandla report in court: Zuma’s interest or legal considerations?

News that the security cluster of ministers is to approach a High Court to review and set aside the public protector’s report on Nkandla does not come as a surprise. While it is difficult to see any plausible legal justification for the review, such a review will tie up the report in the courts for a year or two and will allow attention to be diverted away from the damning findings made in the report against President Jacob Zuma – at least for the foreseeable future.

According to acting government spokesperson Phumla Williams, the government is seeking a review of the public protector’s Nkandla report “to seek clarity” from the court on aspects of the report. In an interview on SAFM Ms Williams explained that the government had asked the public protector to discuss her report with them with a view to “clarify” it. As the public protector refused to revisit her final report, Ms Williams argued, it was hoped the court would provide the necessary “clarity”.

If this is indeed an aim of the government in having the public protector’s Nkandla report reviewed by a court, it demonstrates a worrying lack of basic knowledge of (and respect for) the Constitution and, most notably, for the independence of the public protector as guaranteed in section 181(2) of the Constitution.

As the Constitutional Court confirmed in at least two judgments, Chapter 9 institutions are not part of government and are thus outside of government and independent from it. Moreover, as stipulated in section 181(4) of the Constitution, no organ of state may interfere with the functioning of the public protector. As an ad hoc committee report of Parliament made clear, this means that neither parliament nor the executive could interfere with decisions taken by the public protector relating to a specific investigation.

An attempt to get the public protector to revisit a final report and to “clarify” aspects of it, constitutes a prima facie attempt to interfere with the independence of the public protector. If the public protector had indeed agreed to assist government to “clarify” aspects of her final report, she would have acted in a manner in breach of her constitutional duty to act independently and without fear, favour or prejudice.

For this reason, no judge in South Africa who is even vaguely familiar with the Constitution and the jurisprudence of the Constitutional Court is ever going to agree to interfere with the findings made by an independent Chapter 9 institution by “clarifying” the Nkandla report.

It just ain’t gonna happen.

This does not mean that a report issued by the public protector cannot be reviewed by a court and set aside on the basis that its findings are irrational. If a court finds that no rational person could have made the findings contained in a report of the public protector (based on the facts exposed in the report), a court can set aside that report as invalid.

However, rationality review sets an extremely exacting standard to meet and it will only be in the most exceptional circumstances that a court will set aside the findings contained in a report of the public protector on the basis that these findings are irrational.

As the Supreme Court of Appeal (SCA) indicated in the judgment of Public Protector v Mail & Guardian a court will not direct the public protector as to the manner in which an investigation is to be conducted.

A proper investigation might take as many forms as there are proper investigators. It is for the Public Protector to decide what is appropriate to each case and not for this court to supplant that function…. It would be invidious for a court to mark the work of the Public Protector as if it was marking an academic essay.

What is required, said the SCA, is that an investigation “must have been conducted with an open and enquiring mind” as an “investigation that is not conducted with an open and enquiring mind is no investigation at all”.

Rationality review does not allow the court to enquire into the correctness or the wisdom of the findings contained in a report. Even where the investigation and the findings of the public protector could be faulted or even where reasonable people could differ on whether the conclusions reached by the public protector in a report were correct, this will not render the report invalid.

However, where no rational person could possibly have made the findings contained in a report – based on the facts revealed in that report – a court would have a duty to set the report aside.

This means that it would not be sufficient for the security cluster ministers to point to contradictions between their own exculpatory report (in which they investigated and exonerated themselves) and the public protector’s report and then to argue that the findings in her report were irrational.

It is clear that the president and his security cluster ministers do not agree with some of the findings of the public protector’s report on Nkandla, are aggrieved that the latter report did not exonerate them all like their own report did, and prefer the findings of the government task team report. Who would not prefer a report conducted by your own underlings and exonerating you from any wrongdoing?

Unlike the ministerial task team who supposedly “investigated” the Nkandla scandal, the public protector is an independent constitutional body tasked with investigating such matters without fear, favour or prejudice. While the former report has no constitutional standing, the latter does. The former was not an independent investigation, the latter was. The former was a slap-dash effort of less than 50 pages; the latter was a more than 400 pages long.

But legally this is not the crux of the matter. What is the crux of the matter is that no court in South Africa is going to review and set aside a report conducted by an independent constitutional body because it conflicts with a report drafted by the very people implicated in wrongdoing or by people whose bosses are implicated in wrongdoing.

For this reason I thank my lucky stars that I am not the lawyer tasked with trying to convince a court that the public protector’s report on Nkandla must be set aside because it is irrational. The potential embarrassment and humiliation facing that lawyer is not something that I would wish on my worst enemy.

Having said this, if I had to attack the public protector’s Nkandla report on the basis of irrationality, I would focus on the finding that the president never meant to lie to Parliament. The facts contained in the report clearly suggest otherwise.

Moreover, the president refused to provide the relevant answers and documents requested of him, as he is obliged to do by the Public Protector Act. Prima facie this refusal to co-operate to provide the public protector with the answers that could have proven that he did not lie to Parliament constitutes a criminal offense.

The most plausible interpretation of the facts contained in the report suggest that the president did indeed lie to Parliament in breach of the Executive Members Ethics Code and then refused to co-operate with the public protector to cover up this lie.

The finding that the president did not lie to Parliament was therefore, in my opinion, clearly wrong. Whether it was irrational, thus rendering the report invalid is another matter.

Ms Williams also made another, to my mind, bizarre statement today. “It is the ministers’ view that the public protector’s report and the investigation she conducted trespass on the separation of powers doctrine and… section 198(d) of the Constitution which vests national security in Parliament and [the] national executive,” she said.

This argument is, quite frankly, a legal nonsense. I cannot imagine that any lawyer vetted it.

First section 182 of the Constitution states that the public protector has the power, as regulated by national legislation, to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice”. The only matter which the Constitution prohibits the public protector from investigating is court decision.

Moreover, the Public Protector Act makes it clear that while the functions of the public protector include those that are ordinarily associated with an ombudsman, he or she may investigate, amongst other things, any alleged improper or dishonest conduct with respect to public money, any alleged offence created by specified sections of the corruption legislation with respect to public money, and any alleged improper or unlawful receipt of improper advantage by a person as a result of conduct by various public entities or functionaries. This includes, of course, the president, which, it may surprise the security cluster Ministers to hear, is not above the law.

Secondly, section 198(d) of the Constitution states that: “National security is subject to the authority of Parliament and the national executive.” It affirms that issues of national security cannot be exempted from civilian oversight. Parliament and the national executive have the final authority to direct decisions about national security, but nothing in the section excludes the public protector from investigating matters alleged to be related to national security.

To hold otherwise would be to argue that the president and his government is above the law as long as they claim an issue relates to national security. The argument is one in favour of impunity and lawlessness.

Third, in his reply to the National Assembly in which he responded to the findings of the public protector, the president stated that: “The Security Cluster Ministers, the SIU and the Public Protector all have a constitutional and a legislative mandate to conduct their respective investigations”.

The president has therefore already acknowledged that the public protector was empowered to investigate the matter, despite allegations that it relates to “national security”. The statement today thus directly contradicts the president’s previous acknowledgement that the public protector has the legal mandate to investigate the Nkandla matter.

For these reasons it is difficult to see how the decision to ask the court to review the Nkandla report can be based on any legal considerations. This is therefore almost certainly not a decision based on law, but instead a decision based on what is in the best interest of President Zuma (if not the ANC).

Democracy: let the real work begin

Until 1994 the majority of South Africans were denied the right to vote as equal citizens imbued with inherent dignity. For that reason, for many of us national elections remain a powerful and important event that affirms our dignity. But as the votes are being counted in this election, citizens must remember that democracy is about much more than making a cross next to the party of their choice once every five years on election day.

Like many people of my generation I have ecstatic (and somewhat romanticised) memories of the weeks in 1994 in which South Africa finally became a democracy.

On the evening of the 26 April 1994, I stood in front of the provincial government building in Wale Street in Cape Town and, along with others who had gathered there, shouted “down! down! down!” as the old South African flag was being lowered. I also cheered myself hoarse and cried and hugged my boyfriend as the new flag was hoisted up the flagpole at exactly midnight.

The next day my partner and I drove around Cape Town, from one polling station to the next, quietly (and sometimes not so quietly) cheering on the people patiently standing in long queues, while we scouted around for a polling station where the line was not too long.

But, to be honest, we were really just enjoying the moment, fearful that we would miss out on even one second of the joy and emotion of that day. My boyfriend was waving an ANC flag through the window of the car (my rusted white Jetta) while Miriam Makeba’s voice blasted loudly over the crackling car speakers.

I specifically remember the old middle class white woman with her grey hair (probably wearing clothes bought at “Teals of Kenilworth”), who was standing in the voting queue at Jan Van Riebeeck High School.

As we noisily drove by, she peered at us (one youngish white man and one youngish black man giggling like school girls, giddy with the emotion and excitement of the day). At first she looked worried (or maybe confused) before her face lit up and she flashed her teeth in the brightest smile and lifted a hand in a friendly, slightly ironic wave.

It was then that I cried again. (I did a lot of crying in the week before and after that election.)

Strangely, what I have no memory of is the bombs that went off in the week running up to the election. I vaguely recall that some white people had stocked up on tinned food and candles, fearful of the violent revolution that never came. But I have no memory of the pre-election violence or the serious problems with the counting of votes that almost derailed the whole election.

No election will ever be as emotional and meaningful for me as that first democratic election in 1994. Yet, as I stood in the queue on 7 May 2014 to cast my vote, (unlike in 1994, still worrying at that late stage whether I was making a wise voting choice) emotions came flooding in.

For me, casting a vote in a national election remains a magnificent event. For this one day life seems relatively uncomplicated. Because it only happens every five years and because it requires no more of me than to stand in a queue and to draw a cross next to the name of the party of my choice, it makes democracy seem effortless, a morally pure event, something that affirms my dignity as a citizen but requires little real effort.

But as we turn our attention to the counting of the votes I must remind myself that casting a vote in an election only represents a tiny part of my duties as a citizen in a constitutional democracy.

Don’t get me wrong, representative democracy – in which citizens vote for public representatives in relatively free and fair elections – remains an important prerequisite for the legitimate exercise of public power in a constitutional state. In the absence of free and fair elections, citizens are disempowered and not treated as fully human. Politicians are rulers and not servants and are feared rather than ironically tolerated.

The establishment of representative democracy is a necessary but not sufficient requirement for the creation and maintenance of a system of government in which politicians fear citizens but citizens do not fear politicians.

The real – often messy, complicated and morally confusing – work needed to maintain the democracy occurs in-between elections. Democracy does not begin and end with the casting of a vote. More is required of citizens to make a democracy flourish.

It is only when representative democracy is supplemented by lively and vigorous participatory forms of democracy – which requires citizens actively to take part in the governance of the country – that there is any chance that the government that we have elected will serve ordinary citizens and not only politicians and those with money or the right political or family connections.

It is relatively easy to vote in an election. It is far more difficult to engage actively, in a principled manner (but with an open and enquiring mind) in political and governance processes.

It is even more difficult for ordinary citizens to take back the power from politicians and political party leaders in a system like ours in which we vote for a party and not for individual public representatives at national and provincial level.

Unless you join a political party and become actively involved in the activities of that party, you can easily believe that your voice and your actions do not matter at all – except every five years at the ballot box.

But if we cherish our democracy we must find ways to remain actively involved in holding elected representatives accountable and to fight for what we believe is best for our country and its people.

How can this be done?

If the party you voted for and to whom you are loyal happens to be elected into government at national or provincial level (yes, I am talking to ANC and DA loyalists) you must recognise that it is in the best interest of your party to make your voice heard about the decisions they take in government.

Even if you are not active in the party you are loyal to, nothing prevents you from expressing your concerns about an issue you feel strongly about.

You can organise a letter writing campaign, flood party headquarters with emails and phone calls, organise petitions, contact the office of a Minister or MEC, attend branch meetings, join protest marches organised by civil society groups, unions or community based organisations, write letters to the newspaper, call in to radio talk shows, to let your party know what you think.

As the Treatment Action Campaign demonstrated so brilliantly at the start of the previous decade, even a political party with overwhelming support nationally or in a province is not immune from public pressure of this kind. In the face of its politically astute campaign for free access to anti-retroviral (ARV) drugs for all HIV positive people who require it, the ANC government reversed its opposition to the rollout of ARVs.

If you love your party, and if you have its best interests at heart, you will not be scared to demand accountability from the public representatives that belong to the party of your heart. Often, criticism comes from a place of love and respect and from the desire to help your party to do better. The absence of criticism and protest is often a sign of indifference.

Those who have no strong loyalty to any political party can do many of these things too. If you have access to human or financial resources you can also make submissions to Parliament or organise your community to make submissions on an issue that is being considered by the legislature.

On those occasions that I have made written and oral submissions to the National Assembly, I have always been pleasantly surprised by the seriousness with which MPs engage with such submissions.

For example, after making submissions on a draft version of the Civil Union Bill (which extended marriage to same-sex couples) the National Assembly completely redrafted that Bill to accommodate most of the constitutional objections those of us who appeared before the Portfolio Committee raised.

(I am not sure whether the bet I jokingly made with the Chair of the Committee – that I would give him one year of my salary if their version of the draft Bill passed constitutional muster if he gave me one year of his salary if it did not – had any effect on this decision.)

I am sure every citizen will have his or her own ideas on how to keep public representatives honest and accountable. There is no shame in experimenting with these ideas. However, to me there is a shame in complaining about what you think is wrong, but not doing anything to change it.

Of course, not all forms of citizen protest or criticism will be effective or will change the course embarked on by our elected government. That is also part of democracy. There is nothing illegitimate in an elected government implementing a policy that is not popular – as long as the governing party is prepared to suffer the consequences of their actions at the next election.

The least effective form of protest, I have found, is the mere incessant whining and carping about all that is wrong without offering alternatives. Complaining about our government at dinner parties and shisa nyama’s while not bothering to do anything about it as a citizen is a rather useless and narcissistic exercise.

But if both party loyalists and citizens without any strong emotional or historical connection to a political party in government are prepared to make their voices heard loud and clear in ways that they feel appropriate (within the boundaries of the law), it will make our elected representatives far more accountable and responsive than they have been.

After all, the elected representatives of governing parties and the party leadership know that they will have to beg for your vote at the next election. If they really believe that a proposed policy or decision is going to cost them many votes at the next election, they will listen – unless they are completely irrational, which I believe few politicians are.

Democracy belongs to citizens, not only politicians. Now use it.

The voting process at a glance

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Address of Chief Justice at AACCEI Conference, Turkey on 29 April 2014

THE ROLE OF THE CONSTITUTIONAL AND SUPREME COURTS

IN THE PROTECTIONOF CONSTITUTIONAL ORDER

CHIEF JUSTICE MOGOENGMOGOENG

AACCEI CONFERENCE

ISTANBUL, TURKEY

29 April 2014

Introduction

Your Excellency, President HasimKiliç, the President of the Turkish Constitutional Court and the Association of Asian Constitutional Courts and Equivalent Institutions (AACCEI), your Excellencıes Presıdents and Chıef Justıces of Constıtutıonal Courts and Equıvalent Instıtutıons, distinguished guests, ladies and gentlemen, I greet you.

I am deeply honoured and humbled by the invitation extended by the AACCEI to the Conference of Constitutional Jurisdictions of Africa (CCJA) to participate in the Second Congress of this august body whose noble objectives set out in Article 4 of the Statute are to promote: the protection of human rights, development of democracy, implementation of the rule of law, the independence of the Constitutional Courts and Equivalent Institutions, through the exchange of information and experiences related to constitutional justice.  My presentation is based on theme 4 entitled “The Role of the Constitutional and Supreme Courts in the Protection of Constitutional Order”.

Prerequısıtes for the Capacıty to Protect the Constıtutıonal Order

I am persuaded that truly the pre-eminent desire of every human being, barring negligible exceptions, is to be above all others, to dominate, to outclass and to rule over them and a dısdaınfor any dissenting voice. For this reason, when politicians appoint Judges particularly to the highest court in the land, and when members of opposition political parties and a diversity of lobby groups support or seek to dıscredıt certain appointments, it is at times motivated not so much by what is in the best interests of the nation, but by what is in the best interests of the holders of a supportıve or opposıng viewpoint or the sector they represent.

The ability of the Constitutional and Supreme Courts to protect the constitutional order well, depends to no small measure on the selection of the Judges who are to be appointed to these courts. If Judges so appointed are beholden to any political outfit, or big business or some or other pressure or lobby group or secret organization or even world superpower with vested economic interests, then justice will be adulterated because the justice-dispensing institutions would be toys remote-controlled by the kingmakers or puppet-masters.

We as Judges need to identify and propose the essential ingredients of a selection and appointment process that is objectively credible and sufficiently transparent to protect the courts from otherwıse legitimate and justifiable criticism. I must hasten to state that many younger and smaller democracies that are rich in mineral and natural resources are often criticised severely, by agencies or units sponsored by older democracies whose appointment processes are indefensible in comparison to those under attack. This hypocrisy must be taken into account in the assessment of the legitimacy of the criticism. Some of the essentıalıa of a Constıtutıonal or Supreme Court capable of protectıng and promotıng a constıtutıonal democracy follow below.

The competence of Judicial Officers is not negotiable. A demonstrable track-record of fair-mindedness, commitment to human rights, and the rule of law, decisiveness, humility and personal independence are some of the key traits of a personality fit to serve in the highest court in the land.

The institutional arrangements must be such as to facilitate the independence of an individual Judge to decide any case without being unduly influenced by another Judge, a politician (of a ruling party or opposition party), big business or well organised and highly resourced lobby groups. Securıty of tenure, contınuous judıcıal educatıon, tools of trade, and support systems necessary for a Judge to take his or her own decisions without fear, favour or prejudice, are important.

A Judge should guard against being lured to the point of being compromised by gifts, introduction to exclusive networks that would usher him or her to prestigious clubs or gatherings of the who’s who of this world, positive coverage and the maximization of whatever they say or do however minıscule it may be, the ever-flowing praise from certain quarters that may makeıt difficult for hım or her to disappoint them come decision-making time. It ıs necessary to keep a critical distance from anything oranybody that may compromise one’s integrity, impartiality and independent decision-making. A Judge should always be mindful, without being unduly suspicious, of the exıstence of forces out there vyıng for the control of the institution in which he or she serves. These are forces that want to secure your vote or support whenever matters affecting them are before your court.

One of the worst betrayals of the legitimate aspirations of any nation is by a Judge, whomakes decisions, not because he or she believes they are correct, but in order to please a friend, “constituency” or a lobby or pressure group. That is corruption of the worst kind. As functionaries in the Constitutional and Supreme Courts, we must be our Brothers and our Sisters’ Keepers. We must establish some informal or formal and yet courteous and effectıve peer-review mechanism that would allow us to raise concerns with colleagues who appear to be doing a disservice to these courts, that are central to the protection and promotion of our constitutional democracies.

Judges are themselves their best protectors and best guardians of the institutions in which they serve. It will help us all to remember always that power corrupts, and absolute power corrupts absolutely. Judges are human and they individually and collectively wield enormous power. The potential to be corrupted by this power and by those seekıng to corrupt the system always looms large.

Let me give some context to the magnıtude of this danger based on the powers vested ın the South African Constıtutıonal Court. The Constitution of South Africa is the supreme law of the Republıc. Any law or conduct inconsistent with it is invalid to the extent of the inconsistency and falls to be set aside by the Constıtutıonal Court. The Constitutional Court is the apex court in all matters and the final arbiter of the constitutional validity of decisions taken by the President, Cabinet Members or Premiers etc and laws made by Parliament and Legislatures. In sum, the Constitutional Court has a say in virtually all matters because the Constıtutıon has a bearıng on almost every matter of some ımportance ın our country. The Constitutional Court is the guarantor of our constitutional order. Subject to the separatıon of powers doctrıne, whıch means what the Court says ıt means, the power of our Constıtutıonal Court ıs arguably immeasurable. And thıs could be very dangerous ıf not handled wıth humılıty, due sensıtıvıty and care.

Nothing about the conduct of Judges, theır public statements, decisions,  the trend in decision-making and the potency or otherwise of the reasoning, should give any grouping, any sector of society, any political formation or any class of people, a sound reason to believe that groups or associations which hold certain world-outlooks are always guaranteed a favourable outcome.  For that would be a danger to a constıtutıonal order and a recipe for a dictatorship or anarchy, anarchy wıth tıme dependıng on who ıs on the receıvıng end of the real or perceived ınjustıce.

When the highest court in the land gives a portion of the populationa legitimate reason to believe, that it is not true to its constitutional mandate, but is in the pocket of some powerful or influential personalities or institutions, then public confidence ın them, respect for them and theırmoral high ground would be undermıned. When it ceases to be or begıns to look lıke ıt ıs not the genuine conscience of the nation, but a tool, at the beck and call of some, then it becomes easy to disregard its orders and to openly renounce it on solid grounds and at tımes persuasıvely.

Courts that have given stakeholders reason to believe that they are favourably disposed to some illegitimate interests, because they fear the venomous bite of the power wielded by those they favour,are in no position to protect any constitutional order. Such courts lack the capacıty to fulfil theır role descrıbed by the late Justıce Black of the United States Supreme Court, in the following terms:

Under our constitutional system, courts stand, against any winds that blow, as a haven of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement.[1]

Historically, the Executive has been the most powerful institution of governance.  The tendency by the Executive to downplay the authority of the Judıcıary has been universally observed throughout the ages, wıth great concern.  Thıs ıs what drove Chıef Justıce John Jay of the Unıted States Supreme Court who served as Chıef Justıce for fıve years from 1789 to 1795, to resıgn from the position of Chıef Justıce, because he belıeved that the posıtıon lacked prestıge, to become the Governor of New York.

The South African Constıtutıonal Court and the Protection of Constitutional Order

The South Afrıcan Constıtutıonal Court has done a lot to protect and promote our constıtutıonal order.  Laws that were passed wıthout affordıng the affected publıc the opportunıty to participate meanıngfully ın the law-makıng process, were set aside. Many Acts of Parlıament were declared constıtutıonally ınvalıd by reason of theır ınconsıstency wıth the Constıtutıon.  Several decısıons of the Presıdent and Members of Cabınet suffered the same fate owıng to theır constıtutıonal ınvalıdıty.

Educatıonal, housıng, employment and socıal welfare opportunıtıes or related matters were addressed by our Constıtutıonal Court to gıve the natıon a sense that theır constıtutıonal democracy ıs safe ın the hands of a truly ındependent Constıtutıonal Court.[2]

The Constitution vests judıcıal authority of South Afrıca ın the courts.[3] It further provides that these courts are independent and subject only to the Constitution and the law, which they must apply impartially. And thıs ıs the freedom that the South Afrıcan Judıcıary has been left to enjoy.

Section 38 of the Constitution entitles any person to approach a competent court, ıncludıng the Constıtutıonal Court, to vındıcate hıs or her constıtutıonal rıghts. It does not have to be the aggrieved person herself who approaches the Court. Anyone may act on behalf of another who cannot act on his or her own approach the Court.  Addıtıonally, anyone actıng ın the publıc ınterest may approach the Constıtutıonal Court for the same reason.[4]

As part of ıts efforts to enhance access to justice, the South African Constitutional Court, has over the years assisted indigent and unrepresented litigants, whose papers are ıncoherent by approachıng bodies lıke the Legal Aid South Africa, public interest litigation institutions, the General Council of the Bar and the Law Society of South Afrıca to assist in prosecutıng their matters for free.

All of these achıevements and much more were facılıtated by the ındependence enjoyed by our courts, ıncludıng the Constıtutıonal Court, to decıde cases wıthout any interference whatsoever from any quarter.

Conclusion

The judicial function is seen by many as the last bastion in the defence of individuals.[5]The Judiciary is the third branch of Government, the third arm of the State.  There simply can be no State or government without an ındependent Judiciary in a genuine constitutional democracy.[6]

Appointment to the apex court of any constitutional democracy is a special honour and rare privilege indeed. It must be treasured and allowed to ınfuse ın us an ever-abiding consciousness of the awesome responsibilities that rest on our shoulders for the benefıt of our natıons, the vulnerable, the voıceless and the forgotten poor. We are the bearers of the legitimate hopes and aspirations of the millions that approach our courts daıly, trusting that as final arbiters of what is right or wrong, what is constitutionally valid or invalid, we will refuse to be moved by the power, influence, fame and wealth commanded by any of the parties or sympathetic lobby or pressure groups in matters before us. We will “administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.”[7]

The Judiciary should never be “imperialised”, “adulterated” or corrupted for any reason including the advancement of corrupt, illegitimate or sectoral agendas. We owe our honour, our credibility, our moral high ground and status as guarantors of any constitutional order and as the conscience of our respectıve nations,to always frownıngat all illicit attempts to corrupt our  independence as well as our jurisprudential and philosophical outlook.

FOOTNOTES

[1] Chambers v Florida, 309 U.S 227, 241 (1941). Also see The Supreme Court: Reflections on the Constitutional Protection of Human Dignity, Earl L Neal
[2] See for example, Chrıstıan Educatıon South Afrıca v Mınıster of Educatıon 2000 (4) SA 757 (CC); MEC for Educatıonş KwaZulu-Natal and Others v Pıllay 2008 (1) SA 474 (CC); Government of the Republıc of South Afrıca v Grootboom 2001 (1) (SA) 46 (CC); Mazıbuko and Others v Cıty of Johannesburg and Others 2010 (4) SA 1 (CC);Resıdents of Joe Slovo Communıty, Western Cape v Thubelısha Homes and Others (Centre on Housıng Rıghts and Evıctıons and Another, Amıcus Curıae) 2010 (3) SA 454 (CC); Khosa and Others v Mınıster of Socıal Development and Others; Mahlaule and Others v Mınıster of Socıal Developmentand Others 2004 (6) SA 505 (CC); Bhe and Others v Magıstrate, Khayelıtsha and Others (Commıssıon for Gender Equalıty as Amıcus Curıae), Shıbı v Sıthole and Others; South Afrıcan Human Rıghts Commıssıon and Another v Presıdent of the Republıc of South Afrıca and Another 2005 (1) SA 580.
[3] Section 165 of the Constitution of the Republic of South Africa, 1996.
[4] The Minister of Health and Others v the Treatment Action Campaign case (2002 (5) SA 721 (CC)) is but one of the cases where civil society approached the courts acting on behalf of HIV positive mothers and children who were denied by the government access to medication prescribed to curb mother to child transmission of HIV.
[5] Justice B Ngoepe, Vice President of the African Court: Judicial Dialogue between the African Court and National Judiciaries, Arusha, Tanzania, 18-20 November 2013.
[6]The Rule of Law in South Africa; Measuring Judicial Performance and Meeting Standards. The Hon. MogoengMogoeng, Chief Justice of South Africa: Chair SuellaFernandes, Chair of Trustees, Africa Justice Foundation, 25 June 2013
[7] Schedule 2 of the South Afrıcan Constıtutıon

May the Seventh be with You

Although the election campaign was perhaps not as free and fair as it could have been (the ‘public’ broadcaster, for one, was obviously biased in favour of the governing party), those of us who will head to the polls next Wednesday can do so confident that the casting and counting of ballots will be as free and fair as our vote deserves. As we do so, there are a few important things to remember about the voting process.

On Friday the Electoral Court will conduct a full inquiry into the request by several smaller parties for the Independent Electoral Commission (IEC) Chairperson, Pansy Tlakula, to resign.

In terms of section 7(3) of the Electoral Commission Act, a commissioner of the IEC can only be removed from office by the President on the grounds of misconduct, incapacity or incompetence.

But this can only be done after the Electoral Court has recommended removal, a committee of the National Assembly had endorsed the Electoral Court recommendation and a majority of the members of the Assembly had adopted a resolution calling for that commissioner’s removal from office.

The President can only suspend a Commissioner from office once the National Assembly Committee has started its deliberations. The President would therefore not be able to suspend any Commissioner immediately after the Electoral Court had recommended the removal from office of that Commissioner and will have to wait until the National Assembly begins to consider the matter.

This means that even if the Electoral Court finds that Tlakula was indeed guilty of misconduct, incapacity or incompetence (and it is impossible to say before the hearing on Friday whether this will be done or not), there is no chance that Tlakula will be removed from office before the election on Wednesday.

In the event (not at all a forgone conclusion) that the Electoral Court recommends Tlakula’s removal, it would of course be in the interest of the legitimacy of the election for her to step aside voluntarily.

But no matter what happens on Friday, it would be extremely surprising – given the excellent legal framework established for the conduct of the voting and the counting of ballots – if any real problems arise with the casting and counting of ballots.

The Electoral Act stipulates in great detail how ballots must be cast and counted and prohibit several activities, all of it aimed at guaranteeing the freeness of the vote.

Voters can only vote (between 7 am and 9 pm) at the voting stations where they are registered to vote (unless they complete a sworn statement, in which case they can vote at a different voting station) and then only if they produce a bar-coded ID book. It is important to check that IEC officials mark the thumb of all voters and also that they record that those voters who are given a ballot paper have actually now voted. If IEC officials fail to do so at your voting station, this may mean some voters will be allowed to vote more than once.

If you make a mistake on your ballot paper you have a right to request a new ballot paper from IEC officials. The wrongly marked ballot must be marked “cancelled” in front of your eyes when this happens.

The Electoral Act also contains detailed provisions to deal with the counting of votes. The most important safeguard against fraud in the counting of ballots is that agents of political parties are allowed to be present at the counting and may also object to any alleged miscounting or over-counting of votes.

Section 87 of the Electoral Act prohibits any person from compelling or unlawfully persuading anyone from voting or not voting and from voting or not voting for a specific party. A person who contravenes this section is guilty of a crime and can be sentenced to a term of imprisonment of up to five years.

In terms of section 90 it is also a criminal offense to interfere with a voter’s right to secrecy while the voter is casting a ballot. A person who breaches this section can be sentenced to a term of imprisonment of up to ten years.

One way of forcing voters to vote for a specific party is for a person to harm or kill a voter who fails to show a photograph of their ballot indicating that they had voted for the party of the intimidator. That is why Item 38(1)(A) of the Regulations promulgated in terms of the Electoral Act prohibits anyone from taking a photograph or make any other image of a ballot paper after the ballot has been marked. This section was inserted in 2013 and the 7 May election will be the first election where it will apply.

Section 108 of the Electoral Act also prohibits any person from holding or taking part in any political meeting, march, demonstration or any other political event on election day. People are also prohibited from conducting any political activity (including last minute campaigning) within the designated boundaries of a voting station. Once again a maximum sentence of five years can be imposed for breaching these provisions.

Party agents are also prohibited from displaying or distributing party posters, pamphlets or placards within the boundaries of the voting station. Party agents may also not wear T-shirts or other paraphernalia that identifies them as belonging to a specific political party while they are within the boundaries of the voting station.

Interestingly, section 109 prohibits anyone from printing, publishing or distributing the results of an exit poll during the hours of voting. But it does not prohibit the taking of exit polls and if media houses were to club together to pay for exit polls this could become a standard part of post election proceedings in South Africa.

The IEC has thus far always acted in a manner that instilled confidence in the voting and counting process and there is no evidence to suggest that this will not be the case in the upcoming election. But if any wayward IEC official fails to comply with the law, it will be ordinary voters who will have an important role to play to alert the IEC of wrongdoing.

I hope this article will assist to empowering voters in acting as the eyes and ears of the IEC to ensure that the casting and counting of ballots remain as free and fair as it has been in the previous elections.

PS: This article has been amended to correct a misstatement regarding whether you would be allowed to vote at a different voting station from the one where you are registered.

Critical thinking: the vital sign more important to democracy than your vote

Political parties play a pivotal role in modern democracies. In South Africa, where (in national and provincial elections, at least) voters can only vote for political parties and not for individual candidates, political parties play an even more important role. Yet, it is unclear to what extent political parties truly empower citizens and enhance the quality of any democracy.

After Yoweri Museveni and his National Resistance Movement (NRM) seized power in Uganda in 1986 in the aftermath of unspeakable atrocities committed by previous rulers, a coalition government was formed which initially included members from various political parties and rebel groups.

However, Museveni – stressing the importance of popular democracy, unity, security and economic development – soon identified political parties as one of the main sources of Uganda’s post-colonial woes and its history of ethnic strife. All the coalition parties eventually withdrew from the Museveni government, citing human rights abuses and government corruption as reasons for their withdrawal.

The NRM (later renamed the “Movement”) thus opted for a system in which political parties (other than the Movement) would play no role in the democracy. It was argued that a “no-party democracy” was a truly African political experiment aimed at responding to uniquely African problems.

A new Ugandan Constitution, introduced in 1995, endorsed this form of “no-party democracy”. While political parties were allowed to exist in Uganda, they were not allowed to hold public rallies, operate branch offices, hold elective conferences or recruit members.

National elections were instead held on the basis of the individual merit of candidates. In theory anybody could stand for office, but not on a party platform. However, Museveni’s Movement in fact remained the main political force in the country.

Over time the Movement used increasingly anti-democratic and illegal methods to suppress opposition. The police was also used to detain and harass those advocating for a multiparty system of democracy.

Uganda finally became a multi-party democracy in 2005 due to pressure from both international donors and internal pro-democracy groups. However, Museveni has continued to win elections (increasingly disputed as unfair or even rigged) and political activity cannot be said to be entirely free and fair in Uganda.

The flawed experiment with “no-party democracy” in Uganda bolsters the argument that democracy can only truly flourish in an environment in which different political parties are free to take part in frequently conducted competitive elections. Political competition between competing parties with different ideological orientations and different identities, so it is argued, is a pre-requisite for a democracy to flourish.

This is why section 1 of the South African Constitution states that South Africa is a democratic state founded on the values, amongst others, of “universal adult suffrage, a national common voters’ roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”.

In the absence of a workable alternative, political parties will remain an important vehicle through which representative democracy is made operable in a constitutional state. In order to determine who should represent our interests in various legislative bodies we vote for political parties or, in a constituency system, for candidates who mostly belong to (and represent the interests of) political parties.

Political parties ideally provide ideological coherence to an elected government and make it easier for a majority party to govern a country. It can be said to have a stabilising effect on a democracy.

However, I would contend that multi-party democracy is not particularly well-suited to empower ordinary citizens to take charge of their own lives and to take part in decisions that affect their daily lives.

While a system of multi-party democracy scores high on delivering on representative democracy, it can diminish the important role played by ordinary citizens in their self-government through participatory democracy.

Where political parties are deeply entrenched, where their brands are seared in the consciousness of voters and where they are therefore extremely influential and powerful, the majority of citizens have little direct say in how and by whom they are governed.

The overwhelming majority of voters are not card-carrying members of any political party and thus have no say in electing the leaders of the political party they may vote for. Instead, the relatively small number of card-carrying members of a party elects its leaders (if that party elects its leaders at all). It is this set of leaders at best elected by a few thousand people who direct the work of its democratically elected representatives in the legislature and executive.

In the South African system the leader of the largest party also usually becomes the head of the executive, which means that most voters have no say in who becomes president of the Republic. The leadership of the governing party (not elected by all citizens) will often make the most important decisions about our lives behind closed doors at party headquarters without any direct input from the vast majority of voters who voted for the party.

However, for a rich, lively, meaningful democracy to thrive, voters must have a real say in how they are governed and must therefore be able to participate in important governing decisions. This cannot be achieved merely by obtaining a new mandate from voters every five years.

At the heart of the constitutional guarantee of dignity for everyone lies the idea that citizens must be treated as individuals with human agency and thus that citizens must be allowed to direct how they are governed.

But meaningful citizen participation in governance decisions diminishes the power of governing parties (and its leaders) and most parties who serve in government would therefore try to delegitimise citizen participation or would try to dissuade citizens from becoming actively involved in social movements or citizen groups who may express views and aspirations independent of those of the party of government.

Some political parties achieve this goal by invoking the need for “loyalty” or “unity” in the party and branding those who criticise or question governance decisions that are not in the interest of citizens as “dissidents”, “free agents”, “counter-revolutionaries”, or even “traitors”. The ANC often deploys such tactics to silence citizens and to weaken the ability of its core constituents to act as active citizens whose human dignity will be affirmed by playing a decisive role in how they are governed.

Other political parties deploy the technocratic language of bureaucrats to intimidate or silence citizens. The DA seems to be particularly adept at delegitimising the valid demands of voters by implying that citizens do not and can never understand the complexities of governance and therefore should have no say in how they are actually governed. A textbook example of this is the manner in which the DA handled the open toilet scandal in Cape Town.

Successful political parties are usually also capable of exerting some indirect control over their core supporters by purporting to be more than an organisation with mere aspirations of acquiring and exercising power over others and over the resources of the state.

Selling itself as a movement – something like a religious sect – with its own heroic history, its divine and selfless mission, its righteous battle against forces of darkness, its own colours (green, yellow and black for the ANC; blue for the DA; red for the EFF) it provides some voters with a sense of belonging and creates a group of followers who will blindly and uncritically support whatever the party leaders decide.

Instead of critical and independent thought – the foundation of active citizenship – such party loyalists often hurl tired, cliché-ridden, insults at (and concoct conspiracy theories about) those who retain a semblance of individualism and dare to question or criticise leaders who exercise power unwisely or unlawfully.

It is for this reason that the one thing I am absolutely certain about in life is that I will be attacked, vilified and called names by some DA or ANC loyalists whenever I dare to criticise something their party or its leaders might have done. (I find DA supporters more blindly loyal and less prepared to admit its party’s mistakes than ANC supporters, but I know this observation, too, will elicit howls of protest.) Whenever this happens I sigh I think: “Yes, there it is again, the deathly hand of thoughtlessness, of unthinking, of blind loyalty.”

I am not, of course, suggesting that every single person who happens to be loyal to a political party or its leaders is incapable of independent thought. Far from it. What I am suggesting is that such independent and critical thought occurs despite their party loyalty – not because of it.

Neither am I suggesting that we should abolish political parties to save our democracy. Instead, I am making the rather trite point that the quality of a democracy is enhanced when citizens do not see themselves as beholden to political parties (and the financial interests of big corporations who bankroll the activities of these parties).

Active citizens who read and think, who ask questions, who praise good deeds and criticise unwise or arrogant governance actions, who take part in protest marches (within the limits of the law) and organise their fellow citizens in opposition to policies that serve the rich and well-connected instead of the community at large, play a vital role in enhancing the quality of a democracy.

To fall back on the language of the religious sect so beloved of many political parties: we would make a big mistake if we believed that our salvation lay in the hands of party bosses. Instead, it is only as active, involved, informed, critically thinking citizens that we can take back the power from party bosses and turn them from our rulers into our servants.

Elections: how can we level the playing field?

In a constitutional democracy, a representative institution (like a legislature) is said to gain its legitimacy through a free and fair election (and the election campaign, which precedes it) that ultimately determines the composition of the legislature. However, it is far from clear that an election in a modern democracy in a capitalist state can ever be completely free and fair.

“If voting changed anything,” remarked the anarchist Emma Goldman, “they’d make it illegal.” But you do not have to be an anarchist or believe that voting can never change anything to ask critical questions about the factors that may make it difficult for every single voter to decide freely (and in an informed manner) which political party he or she should vote for.

Asking such questions is not to deny the importance of elections for all of us who live in our South African democracy. In a country like South Africa where the vast majority of citizens had been denied any say in the governing of the country for over 300 years, the act of voting carries a profound symbolic significance. As the Constitutional Court remarked in August v Electoral Commission:

The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.

It is exactly because voting in a national election is a “badge of dignity and personhood” for those who take part in it, that it is important that we do everything we can to make the process as free and fair as is humanly possible. This requires us to identify the barriers which limit free political activity and thought, and to devise ways of dismantling such barriers.

Free and fair elections are a matter of degree: working towards a more free and fair system is therefore a process, not an event.

Even when voters are free to cast their ballots in secret and where these ballots are all counted accurately (as has arguably been the case in South Africa since the dawn of democracy in 1994), many factors limit the ability of voters to make informed choices about whom to vote for.

It is therefore impossibly optimistic to talk of a truly free and fair election campaign. Election campaigns can be more or less free, but the radical freedom that would allow each voter to make a truly informed choice at the end of an election campaign remains a far-off dream.

At the heart of the problem is the corrosive influence of money and power – also the money and power wielded by private business.

Money skews the electoral process. Political parties with access to money can run far more effective election campaigns than parties without the necessary resources. It is for this reason that the interests of those who can donate large sums of money often play a disproportionate role in the calculations of any political party who aspires to govern the country.

If you have pots of money you can bus supporters to rallies, can dish out T-shirts and food parcels, can pay popular artists to perform at the rallies and can fly your leaders with a private jet from one rally to the next.

You can also organise thousands of “volunteers” to phone or personally visit potential voters in their homes to sell your party, its leaders and its message.

You can produce and flight radio and television adverts to sell your party to voters and can print millions of posters and flyers to create the impression that your party is a serious entity with real electoral support.

You can pay media consultants to ensure your party’s presence on social media and to advise you on which messages will resonate with potential voters and which will not.

You can also conduct tracking polls to find out whether your campaign is effective or not and can adjust the campaign accordingly, shifting resources from areas where you are not gaining traction to other areas where you seem to be gaining support.

A party without the vast sums of money available to the ANC and (to a lesser extent the DA) can do few, if any of these things and are therefore at a distinct disadvantage in communicating their message to voters. They have to depend on the media to spread their message.

But under normal circumstances the media do not and cannot treat all political parties equally and fairly. The larger parties are given more attention than smaller parties, thus reinforcing the dominance of the larger parties vis-à-vis smaller parties.

Moreover, some media outlets are more sympathetic to some parties than to other parties.

The SABC, whom the vast majority of voters depend on for their information about the election, supports the ANC and relentlessly promotes its message and its leaders while either ignoring or minimising the messages of other political parties.

Some of the mainstream “serious” printed media (serving a relatively small economic elite) is more sympathetic towards the DA. As far as I am aware no media outlet pushes the agenda of the Economic Freedom Fighters (EFF), perhaps because its economic and political programme threatens the financial interests of the media companies who must report on the EFF’s activities.

A political party who is in government also enjoys the benefits of incumbency. It is a known quantity and in the eyes of many voters appears to be the vehicle through which the state benefits are provided to citizens. Incumbent parties often use (or abuse) state resources and their control of government machinery to reinforce the electoral messages the party wishes to communicate.

Smaller parties or new parties are at a particular disadvantage in this regard as it has neither the resources nor the power to convince voters that it would be able to do a better job than the lot who has been governing over the previous five years.

One of the most effective ways of levelling the playing field is to provide all political parties who has at least some demonstrable electoral support with substantial free access to all radio and television stations to sell itself to the electorate.

This can be done by providing a nightly platform of 30 minutes across all radio and television stations in the country, where each party is given free reign to sell itself to voters. If this window is provided on all television and radio stations at the same time, it will be impossible for most potential voters to ignore.

The major political parties (perhaps the 10 parties who had registered the most support in an independent survey at the start of the campaign) could be given turns each night (say, for 15 minutes each) to sell itself to the electorate in any way it wished.

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The Chilean movie, No, starring Mexican actor Gael Garcia Bernal (and worth seeing for that reason alone) is instructive in this regard.

It tells the story of how, after fifteen years of military dictatorship, the public of Chile is asked by the government to vote in the national referendum of 1988 on whether the dictator General Augusto Pinochet should stay in power for another eight years or whether there should be an open democratic presidential election the next year.

The movie depicts this campaign, which took place over 27 nights of television advertisements, in which each side had 15 minutes per night to present its point of view. At the start of the campaign it was widely accepted that General Pinochet would easily win the referendum as he had all the advantages of an incumbent dictator.

However, over that month, the No campaign, created by the majority of Chile’s artistic community, proved effective with a series of entertaining and insightful presentations that had an irresistible cross-demographic appeal.

By contrast, the “Yes” campaign’s advertising, having only dry positive economic data in its favor, was too stodgy, crass and heavy-handed, which led to a defeat for General Pinochet and an effective end to the right wing dictatorship.

Such free access for all political parties to radio and television will not deal with all the factors that limit the freeness and fairness of elections. But it will represent a major step in democratising the electoral process and levelling the playing field – especially for smaller political parties whose message is unpopular with the economic and political elite who usually control so many of the resources in a capitalist society.

CASAC submission to Parliament on work of its Nkandla committee

_________________________________________________________________

SUBMISSION TO PARLIAMENT 

BY THE COUNCIL FOR THE ADVANCEMENT 

OF THE SOUTH AFRICA CONSTITUTION (CASAC) 

23 APRIL 2014 

_________________________________________________________________

INTRODUCTION 

1. On 9 April 2014 the Speaker of the National Assembly made the following Announcement:

On 2 April 2014, the President of the Republic of South Africa submitted the following documents which were tabled on the same day – 

a) Letter in response to Public Protector’s report [Report No. 25 of 2013/14]; 

b) Proclamation by the President of the Republic of South Africa (Proclamation No. R59, 2013); and 

c) Copy of the Public Protector’s report.

After consultation with the Chief Whip of the majority party and senior whips of the other parties, I have decided in terms of Rule 214(1)(b) to appoint an ad hoc committee, the committee to – 

a) consider the submissions by the President of the Republic of South Africa in response to the Public Protector’s report and make recommendations, where applicable; 

b) exercise those powers as set out in Rule 138 that are necessary in carrying out this task; 

c) consist of twelve members, as follows:- 

ANC 7 

DA 2 

COPE 1 

IFP 1 

Other parties 1; and 

d) report no later than 30 April 2014.

2. The Committee has since been established. From the reports of the media, other than the Congress of the People, all other political parties have taken up their positions in the Committee.

3. In terms of its constitution, the Council for the Advancement of the South African Constitution (CASAC) stands for several founding values. These include:-

3.1 the idea of progressive constitutionalism;

3.2 the protection and advancement of the founding values of the Constitution which include a deliberative, participatory and inclusive democracy;

3.3 the notion that the Constitution is a living, not a static, document and must evolve to deepen democracy;

3.4 the rule of law must be used as an important foundational block in advancing constitutionalism;

3.5 the notion that private and public power should be exercised within the law and must enhance a culture of responsibility and accountability to guard against arbitrary use and abuse of power and authority;

3.6 in advancing its mission, CASAC acknowledges that there is a gap in the living reality of many South Africans who do not have access to the constitutional promises embodied by the notions of equality, human dignity and socio-economic rights. For this gap to be closed, on a progressive basis, public resources ought to be used in the interests of the majority of the people, rather than to benefit a few.

4. It is with these considerations in mind that CASAC welcomes the decision by the Speaker to appoint an ad hoc committee to conduct an investigation into the report of the Public Protector and the President’s response, and make appropriate recommendations. We note, however, that the ad hoc committee has not been provided with specific terms of reference. In terms of Rule 138 the Committee will exercise the same powers as those conferred on any other committee of the National Assembly, an aspect to which we revert below.

5. Furthermore, the time limit provided for the committee to undertake its assignment is extremely short, bearing in mind the complexity and length of the report under consideration. These factors may ultimately challenge the forensic ability of the ad hoc committee and place a question mark over the reliability of its findings or recommendations. Nevertheless, we make these submissions on the basis of what we consider to be the important findings made by the Public Protector, which require answers from the President.

6. It is worth recalling, briefly, some important provisions of the Constitution.

RELEVANT CONSTITUTIONAL PROVISIONS 

7. South Africa is founded on several values, articulated in Section 1 of the Constitution. They include human dignity, the achievement of equality and the advancement of human rights and freedoms, the supremacy of the Constitution and the rule of law, and a multi-party system of government to ensure accountability, responsiveness and openness.

8. Section 83 establishes the office of the President. The President is, under Section 83(1) the head of the State and the head of the National Executive. He is obliged to uphold, defend and respect the Constitution as the supreme law of the Republic. The President is also required to promote the unity of the nation and that which will advance the Republic.

9. In terms of Section 89 of the Constitution, the President can be removed from office by the National Assembly. Section 89 provides as follows:

(1) The National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the grounds of – 

a) a serious violation of the Constitution or the law; 

b) serious misconduct; or 

c) inability to perform the functions of office. 

(2) Anyone who has been removed from the office of President in terms of sub-section (1) (a) or (b) may not receive any benefits of that office, and may not serve in any public office.

10. The National Assembly is responsible for holding the National Executive accountable. Section 55 of the Constitution sets out the oversight powers of the National Assembly. In Section 55(2) the National Assembly is required to provide mechanisms “to ensure that all executive organs of State in the national sphere of government are accountable” to Parliament. Furthermore, the National Assembly is required to maintain oversight of the exercise of National Executive  authority, including the implementation of legislation and the oversight over any organ of State.

11. Section 181 provides for the establishment of six institutions which support constitutional democracy. They include the Public Protector, whose report is the subject of examination by the present committee. Section 181(2) provides that Chapter 9 institutions are independent and subject only to the Constitution and the law. These institutions should be impartial and exercise their powers and perform their functions without fear, favour or prejudice. In Section 181(3) it is provided that other organs of State through legislative and other measures “must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.” No person or organ of State may interfere with the functioning of Chapter 9 institutions. (Section 181(4)). Under Section 181(5), Chapter 9 institutions are accountable to the National Assembly.

THE FINDINGS AGAINST THE PRESIDENT 

12. The Public Protector has made several findings in her report. We do not wish to focus on each and every finding made in the report. Our interest is limited to the findings made against the President and to making submissions pertaining to how Parliament should hold the President accountable for the findings made by the Public Protector.

13. The findings appear from page 427 onwards in the Report of the Public Protector. An extract of the relevant findings is the following:-

(4) It is my considered view that the President, as the head of South Africa Incorporated, was wearing two hats, that of the ultimate guardian of the resources of the people of South Africa and that of being a beneficiary of public privileges of some of the guardians of public power and State resources, but failed to discharge his responsibilities in terms of the latter. I believe the President should have ideally asked questions regarding the scale, cost and affordability of the Nkandla Project. He may have also benchmarked with some of his colleagues. He also may have asked whose idea were some of these measures and viewed them with circumspection, given Mr Makhanya’s non-security background and the potential of misguided belief that his main role was to please the President as his client and benefactor.

(5) It is also not unreasonable to expect that when the news broke in December 2009 of alleged exorbitant amounts, at the time R65 million on questioned security installations at his private residence, the dictates of sections 96 and 237 of the Constitution and the Executive Ethics Code required of President Zuma to take reasonable steps to order an immediate enquiry into the situation and immediate correction of any irregularities and excesses. 

(6) His failure to act in protection of State resources constitutes a violation of paragraph 2 of the Executive Ethics Code and accordingly amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by Section 96 of the Constitution.

IMPLICATIONS OF THE FINDINGS 

14. Section 96(2)(b) of the Constitution provides that members of the Cabinet (including the President) may not “act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”.

15. The section sets a very high standard. It does not prohibit only actual conflict of interest. It also prohibits the President from putting himself in a position where there is a “risk of a conflict”. This requires far more from members of the Cabinet than the Constitution requires from ordinary public servants.

16. The rationale for this stringent requirement for members of Cabinet is clear: members of the Cabinet exercise immense power and they must be above suspicion that they have abused their powers. In a democracy, people agree to grant the power to govern them to others on condition that those who exercise the power do so fairly, lawfully, honestly and in the public interest. That is even truer of the office of the President.

17. When a member of cabinet places herself in a position where a decision in the public interest will may be in her private interest, it undermines public trust not only in the individual, but in the office itself. Any situation that can be said to undermine public trust or faith in the office or its occupant must be said to be contrary to s 96(2)(b).

18. The findings of the Public Protector with regard to President Zuma clearly meet that threshold. When the President addresses the question of public spending on his residence at Nkandla, he inevitably affects his own private interests. In other words, there is “the risk of a conflict between” his official responsibilities and his private interests: the public interest is to prevent unnecessary or wasteful expenditure; his private interest is to secure a more lavish or comfortable home. That conflict of interests will inevitably lead to a loss of trust in President Zuma, and the office of President.

19. Section 89 states that Parliament “may” remove the President on the grounds of “a serious violation of the Constitution or the law” or “serious misconduct”. The purpose of the provision, unlike the motion of no confidence provision in s 102, is to ensure that the President does not abuse his position. It is not linked, like s 102 is, to a President’s popularity or performance. There are specific instances that can justify a removal under s 89: violations, misconduct and inability. The section exists to protect the office, and to protect the Republic form those who cannot exercise the powers of the office faithfully.

20. The use of the adjective “serious” indicates that there are some constitutional violations and some forms of misconduct that are not serious enough to justify removing the President. Where is the line between “serious” and non-serious violations or misconduct? This, in CASAC’s view, is an issue that must primarily be dealt with by Parliament. While courts may in some situations be required to rule on the issue,1 s 89 affords the power to Parliament as a legislative and political body to determine when misconduct is so serious that it warrants the President’s removal.

21. However, while the ultimate determination of how to act under s 89 is, by its nature, a principally political matter, Parliament is obliged to act rationally in reaching that decision. The Constitutional Court has repeatedly made clear that not only must decisions be rational, the process that is followed in reaching those decisions must also be rational.2 In the words of Justice Yacoob: “[B]oth the process by which the decision is made and the decision itself must be rational.”3

22. The Public Protector found that President Zuma knowingly benefitted from the upgrades to the Nkandla residence, and failed to take any steps to curb out of control spending that redounded to his benefit. Those are serious findings. Depending on the exact facts, it could legitimately be treated as serious misconduct, or a serious constitutional violation.

23. For the National Assembly to make a rational determination of whether President Zuma’s conduct warrants removal, it must make sure it has all the relevant facts before it. What did the President know and when? Why did he fail to act to prevent the uncontrolled spending? Was his misleading of Parliament indeed bona fide as the Public Protector concluded? Were the costs related to private renovations separated from state expenditure? The Public Protector made findings on these issues, and was unable to make findings on others. Some of her findings depart from those of the task team established by Government to investigate the issue.

24. The Assembly has the power under s 56 of the Constitution to summon any person to “give evidence under oath” and to require them to produce documents. In order to make a rational decision on whether or not the President is guilty of serious misconduct or serious violations of the Constitution, it must not merely consider the Public Protector’s Report; it must obtain additional information to address the unanswered questions in the Report. The Public Protector’s Report makes many negative findings, but also raises many questions. In order to determine whether the President’s established misconduct and violations of the Constitution are indeed “serious”, he needs to be questioned by Parliament.

THE BREACH OF THE CODE OF ETHICS FOR MEMBERS OF THE EXECUTIVE 

25. The Public Protector has also found that the President has breached paragraph 2 of the Code of Ethics.

26. Paragraph 2 of the Code of Ethics provides for “general standards” to be observed by members of the Executive. Consistently with the finding that the President failed to uphold the provisions of section 96 and 237 of the Constitution, it is submitted that the Committee can probe the issue of whether the President acted in breach of paragraph 2.1(b) and 2.1(d).

27. The above provisions (i) impose an obligation on the President to fulfil the obligations imposed; and (ii) require the President to act in a manner which safeguards the integrity of the office of the President or the government.

28. The factual finding of the Public Protector is that in December 2009, the President became personally aware of the expenditure at his property, which at that stage was estimated at R65 million. Despite this awareness, he failed to take action to prevent further expenditure, thereby placing his personal interest in conflict with those of his office. Furthermore, the finding of the Public Protector shows that the failure by the President to take steps in December 2009 in effect allowed further unchecked expenditure, resulting in more than R200 million by the time the matter came to be investigated by the Public Protector.

29. When considering the implications of the violations of the Ethics Code, as found by the Public Protector, the Committee must take into account that the President, as Head of the National Executive, is required to exercise executive oversight over other members of National Executive. That creates a responsibility that he must lead by example.

THE ISSUE OF THE SPECIAL INVESTIGATING UNIT INVESTIGATION 

30. Before the establishment of the Ad Hoc Committee, it was reported that the President had decided that he would respond to the Report of the Public Protector, after certain further investigations had been conducted by the Special Investigating Unit (SIU). The President confirmed this in his letter to the Speaker dated 01 April 2014. 16

31. This stance by the President should not be entertained for the following reasons:

31.1 In terms of section 55 of the Constitution, it is clear that the President is accountable to the National Assembly, in his capacity as Head of the Executive. He is unable to dictate the terms of his engagement with the National Assembly.

31.2 In terms of section 181 of the Constitution, all organs of state, including the executive must assist chapter 9 institutions to ensure their effectiveness, impartiality and independence. The view taken by the President, effectively to equate the report of the Public Protector with a report prepared by members of the President’s Cabinet, diminishes the status of the report of the Public Protector. Furthermore, the failure to act in terms of the report – without challenging the report in any court of law – effectively undermines the effectiveness and the independence of the Public Protector.

31.3 The SIU investigation is limited to the matters outlined in the Proclamation by the President (No. R. 59, 2013) which focus on the Department of Public Works. The SIU is not competent to investigate the findings of the Public Protector, namely that the President acted in breach of the Constitution and the Code of Ethics. Any investigation by the SIU will not address those issues. Under the Constitution and the Executive Members Ethics Act, that is the responsibility of Parliament.

32. It is therefore submitted that the investigation by the National Assembly cannot be made subject to the report of the SIU. The National Assembly is not subservient to the SIU. If (as we submit) the President must answer certain questions, there is no legal or constitutional impediment to such course of action.

Lawson Naidoo

Executive Secretary

CASAC

Endnotes

1 For example, if a President is removed and challenges his removal on the ground that his misconduct was trivial.

2 See, for example, Albutt v Centre for the Study of Violence and Reconciliation and Others [2010] ZACC 4; 2010 (3) SA 293 (CC) ; 2010 (2) SACR 101 (CC) ; 2010 (5) BCLR 391 (CC); and Democratic Alliance v President of South Africa and Others [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC).

Democratic Alliance (above) at para 34.