As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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.