An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
It will be a brave (or perhaps foolhardy) judge who will grant the application of Johannesburg businessman Hugh Glenister to stop President Thabo Mbeki and the safety and security and justice ministers from initiating legislation to dissolve the Scorpions. The Constitutional Court, it seems to me, has frowned upon such applications which are seen as premature because they are brought even before the legislation is debated and adopted by Parliament.
But important arguments about the nature of our democracy and the relationship between the ruling party and the state were raised this week before Pretoria High Court judge Willem van der Merwe (who acquitted Jacob Zuma on rape charges) and it will be interesting to see how the Court deals with them. Advocate Michael Osborne, who acted on behalf of several political parties, argued that the decision blurred the division between the state and the party and as such represented a threat to our democracy.
To bolster his case he quoted from a statement made by Treasurer-General of the ANC, Mr Matthews Phosa, who said that:
The president of the country takes guidelines, mandates and instructions from the ANC…. There is only one centre of power and that is the highest decision-making structure of the ANC. The NEC, including the President of the ANC, in effect becomes the representative of the majority of voters between elections. Its task therefore is to instruct the executive and legislative organ of government on issues of policy. The elected ANC structures hold the ultimate power in this situation and all structures and leaders of the governing party will account to them. The President and his or her Cabinet accounts to the NEC of the ANC, as any other structure of Government does.
He argued that this view of the relationship between the ANC and the executive – reflected in the “instruction” of the ANC at Polokwane to the executive to disband the Scorpions within six months – wholly undermines Parliament, who has a Constitutional duty to hold the executive to account. I agree with this view, but unfortunately it is unclear whether such an argument will be successful.
The problem is that our Constitution does not spell out the appropriate relationship between the Party and the State. It is true that the Constitutional Court has made clear that our Constitution establishes a mix of a representative and and a participatory form of democracy and that the public had a right to take part in important decisions of Parliament. If the legislation to disband the Scorpions were therefore to be rammed through Parliament without giving the public the opportunity to take part in this process, it would contravene the Constitution.
At the same time it is clear that the representative aspect of our democracy allows the majority party in Parliament to pass legislation as it sees fit – as long as it can be shown to have allowed for public participation, has acted in a rational manner and as long as the legislation does not infringe on our rights.
The problem is that our electoral system bestows enormous power on the leadership of the majority party to do as it pleases. Given the fact that we vote for political parties and not for individuals and given, moreover, that party bosses can decide which of their members serve in Parliament and who is elected President, those party bosses can at least indirectly dictate policy to its members in Parliament and in effect to the executive.
The strict party discipline we inherited from the Westminster systems has now further been bolstered and entrenched by an electoral system that emasculates individual members of Parliament and bolsters the power of the Party leadership. When the Party’s leaders and the leaders of the country are the same people the system can more or less work and can at least provide the facade of real participatory democracy. But when there are two centres of power – as is now the case – it exposes a great weakness in our Constitution.
An argument could be made that democracy is not really undermined because if we do not like what party bosses are doing, we can vote the party out of power at the next election. In South Africa at present that option is not really available. This means the Party leadership – elected by 4000 people at Polokwane – has far more power than the members of the executive or of Parliament.
I am not sure a court can do anything about this because that is the system our Constitution is based on. If we did not have a one party dominant system, it would not have been such a big problem, but we all know that opposition parties will for the time being not attract large amount of ANC voters and that is what creates the problem as there is no real possibility for a change of government. This may allow the party bosses to take very stupid and even corrupt decisions and then to enforce these decisions via the legislature and the executive.
What would be required is a change in the electoral system and perhaps legislation to ensure that political parties adhere to basic principles of democracy in their internal operations. Whether a court can – or even should – interfere in this process is highly debatable exactly because our constitution gives such an important role for the Party. For a court to intervene might well overstep the line between the judiciary and the other branches of government.
But maybe if this case goes all the way to the Constitutional Court, those clever judges will find a way to clarify the role of the Party vis-a-vis the state that would mitigate some of the problems we now experience in our democracy. So maybe judge Van der Merwe should be brave and even a bit foolhardy so that the problem could be addressed by our highest court.BACK TO TOP