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.
Tomorrow 400 members of the National Assembly will be sworn in and will take up their seats in Parliament. They will then elect a new President who – if everything goes according to plan (one never knows!) – will head the Executive for the next five years. These MP’s will swear (or solemnly affirm – accommodating the non-religious) that they will be faithful to the Republic of South Africa and will obey, respect and uphold the Constitution and all other law of the Republic. They will also solemnly promise to perform their functions as members of the National Assembly to the best of their ability.
But in reality the loyalty of these MP’s – regardless of which party they belong to – will not be first and foremost to the Constitution, or even to Parliament. Because they have been elected on the basis of a list system of pure proportional representation, their first loyalty will always be to the political party they belong to and especially the leadership of that political party. Their positions in Parliament are wholly dependent on their good standing within their respective political parties and if they upset the party leadership they might well be “redeployed” as Ambassadors to Tziki-Tzikistan or as second in command of the Putsonderwater sewerage plant.
This, it seems to me, is one of the great weaknesses of our constitutional system. The National Assembly is supposed to be the engine room of our democracy and has a constitutional duty to hold the executive to account and to ensure that the executive serve the people of South Africa and not their own ego’s or the whims of the bureaucrats staffing the various government Departments. Section 42(3) of the Constitution states that:
The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.
In the past the members of the National Assembly have not always represented the people effectively and have not fulfilled its oversight role in the manner envisaged by the Constitution. How many South Africans even know the name of the MP who is supposed to represent their interests in the National Assembly? How many have approached their MP to help them solve a problem with an often heartless and incompetent bureaucracy or to make their voices heard on the topical issues of the day?
When the arms deal scandal came to light, a majority of MP’s on SCOPA was browbeaten by Minister in the Presidency, Essops Fables, to stop their investigation and to endorsed the whitewash report by the Auditor-General, the Public Protector and the NDPP, which was “amended” (I would say, “doctored” was a better word) after a draft was submitted to President Mbeki.
When then President Thabo Mbeki – under the influence of Anthony Brink and other “dissident” scientists – developed eccentric and highly toxic views on HIV/AIDS, most MP’s remained silent as thousands of South Africans who had no money for medical aid and could not afford anti-retroviral drugs quietly succumbed to AIDS.
Those courageous and principled MP’s who did not agree with these developments – most notably Pregs Govender and Andrew Feinstein – resigned from Parliament because there was apparently no scope in the ANC caucus for expressing dissenting views. Some DA MPs have also quietly resigned after differences with Tony Leon and Helen Zille. Because of the list system of proportional representation they really had no other choice. If they had not resigned, they would have been fired.
That is why a mixed system, in which half the MP’s are elected directly in constituencies and the other half on a proportional representation basis to ensure proportional representation of parties in Parliament, stands a better chance of producing a far more active and responsive Parliament – and this would be good for especially the poor and marginalised South Africans who find themselves without a voice and feel the only way to make themselves heard is through violent protests and boycotts.
Some argue that this system has not produced a particularly responsive crop of local government councilors and that a change in the electoral system will not necessarily improve the way in which Parliament serve the people and the way it holds the Executive to account. They might have a point. Changing the electoral system will not miraculously make public representatives more hardworking and responsive to the needs of ordinary citizens.
After all, there are many reasons why public representatives are not more effective and robust. Many public representatives lack the skills, knowledge, independence of mind and courage to act as true representatives of the people – often through no fault of their own. Parliament should therefore do much more to educate and empower MP’s to do their job properly. Surely all new MP’s should receive intensive training preparing them for their role as servants of the people.
But a change in the electoral system will open a window of opportunity that might improve the performance of MP’s. The role of MP’s in the national parliament differs from that of councilors and MP’s are potentially far more powerful than their local government counterparts. For example, the committee system in the National Assembly provides a very powerful platform for MP’s to make a real difference by scrutinising draft legislation and by holding the Executive to account.
Even so, a real change will only occur when ordinary voters become active citizens who engage their MP’s and place pressure on their MP’s to do their job properly. South Africans tend to be either passive citizens or, when they do organise and resist heartless and unwise decisions, to do so outside the official channels by taking to the streets in service delivery protests. If at least some MP’s are directly elected, it would make it easier for ordinary citizens to engage their MP’s and to actively take part in the governance of the country.
Sadly, almost all political parties represented in Parliament are not keen to change the electoral system because it will take away some of the power of the party leadership and will devolve some of the power to the constituency level. Party leaders do not like MP’s with an own constituency and an independent bent because this will weaken the party discipline and will make it more difficult for party leaders to force MP’s to follow the Party line.
The system will only change if the self-styled champions of the people – COSATU, the SACP and the ANC Youth League – take up this issue and make a concerted effort to fight for the rights of ordinary citizens to be properly represented in Parliament. I sincerely hope that these members of the Alliance will take up this issue and that they will try and convince the ANC to change its policy when it meets for its next conference in 2012.
Such a move will be good for democracy and good for ordinary citizens. Come on Zwelenzima Vavi, Blade Nzimande and Julius Malema, I know you can…BACK TO TOP