The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
On paper the National Assembly, whose members are democratically elected, is a powerful body. It elects and can fire the President. It is empowered to pass legislation and to hold the members of the executive to account. But because the electoral system allows party leaders to exercise control over individual MPs, the Assembly often acts as a rubber stamp for decisions taken by the executive, turning MPs into glorified messengers for party bosses. A recent judgment by the Constitutional Court may begin to address this problem.
Section 73(2) of the Constitution allows any member of the National Assembly to introduce a Bill in the Assembly – even if that member is not a Cabinet Minister and even if that member belongs to an opposition party. However, the rules of the National Assembly (adopted in 1998) stated that this could only happen if a majority of members of the Assembly had given “permission” to an MP to initiate such legislation. In practice this meant that members of the opposition could never introduce any Bills in the Assembly. All they could do was to criticise the Bills introduced by the relevant Cabinet Minister. Their own legislative proposals had no chance of being debated by the relevant Portfolio Committee in the National Assembly.
In Oriani-Ambrosini v Sisulu the Constitutional Court, in an excellent judgment authored by Chief Justice Mogoeng Mogoeng, declared these rules of the National Assembly unconstitutional. The judgment serves as a reminder that ours is a constitutional democracy “that is designed to ensure that the voiceless are heard”, one in which the “views of the marginalised or the powerless minorities” cannot be suppressed.
Quoting from a previous Constitutional Court judgment, Mogoeng reaffirmed that:
[T]he Constitution does not envisage a mathematical form of democracy, where the winner takes all until the next vote-counting exercise occurs. Rather, it contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered. . . . The open and deliberative nature of the process goes further than providing a dignified and meaningful role for all participants. It is calculated to produce better outcomes through subjecting laws and governmental action to the test of critical debate, rather than basing them on unilateral decision-making.
When individual MPs have the power to initiate legislation and introduce Bills in the National Assembly it provides them with an opportunity “to promote their legislative proposals so that they could be considered properly”. The members of both the majority and minority parties in the Assembly will then be required “to deliberate critically and seriously on legislative proposals and other matters of national importance”. These deliberations will then happen in the relevant Portfolio Committee before the Bill is submitted to the National Assembly for a vote.
There is a good reason for the Constitution’s inclusive approach to democracy. As Justice Mogoeng reminded us:
South Africa’s shameful history is one marked by authoritarianism, not only of the legal and physical kind, but also of an intellectual, ideological and philosophical nature. The apartheid regime sought to dominate all facets of human life. It was determined to suppress dissenting views, with the aim of imposing hegemonic control over thoughts and conduct, for the preservation of institutionalised injustice. It is this unjust system that South Africans, through their Constitution, so decisively seek to reverse by ensuring that this country fully belongs to all those who live in it.
This does not mean that the will of the majority party in the Assembly can ultimately be thwarted. The majority party can always vote against a Bill after it had been discussed and debated by the Portfolio Committee. Some might say the right of opposition MPs to introduce their own Bills would therefore be of little more than ceremonial significance. However, as the Constitutional Court pointed out, this is not so as it will give opposition MPs the opportunity to go beyond an obstructionist oppositional role, allowing them to submit constructive proposals of their own about how to solve a particular legislative problem and allowing these proposals to be discussed seriously by the members of the National Assembly.
Our electoral system — which requires us to vote for political parties and not for individual MPs – renders it difficult for voters to hold individual MPs accountable. Unless we join a political party and unless we actively take part in the election processes for the leadership of that party, we have little or no say in who represents us in Parliament and who is elected as our President. This diminishes transparency and accountability in the governance and law-making processes.
Given these limitations, rules of the National Assembly which would make it impossible for individual MPs to have their alternative legislative proposals tabled and discussed by the Assembly diminishes our democracy and robs voters of the opportunity to judge whether they support the legislative proposals of the governing party or of any given opposition party.
Chief Justice Mogoeng emphasised that in providing such alternatives it “allow for a legislative proposal to be debated properly and in a manner that is open to the public, before its fate is decided”. Furthermore:
public participation, so as to cultivate an ‘active, informed and engaged citizenry’, is also facilitated by rules that allow even minority party members, who are not ordinarily represented in Cabinet, to initiate or prepare legislation and introduce a Bill. This is because the public can only properly hold their elected representatives accountable if they are sufficiently informed of the relative merits of issues before the Assembly.
For example, imagine what might have happened if an individual member of the opposition had been allowed to introduce an alternative Protection of State Information Bill into the National Assembly. We would then have had the opportunity to compare this alternative Bill with the Secrecy Bill punted by the securocrats in the government. The relevant Committee would then have had two Bills before it containing different approaches to dealing the protection of state information.
If the version of the Bill introduced by the opposition MP turned out to be frivolous or unworkable, it would have exposed the opposition party to criticism and might have created the impression in the minds of voters that the party is not ready to govern the country. If, however, the Bill provided a workable (but human rights friendly) solution to the problem of how to protect state information, it would have embarrassed the majority party and would have enhanced debate — both in Parliament and by the public — about what is at stake with the passing of the Bill.
Of course, this does not mean the majority party would have changed course and would have ditched the Secrecy Bill in favour of an alternative Bill proposed by Lindiwe Mazibuko. The majority party would remain entitled to make the final decision on which Bill to pass into law — no matter how unpopular or how unwise that Bill might be with the electorate.
But in the long run its MPs would have been forced to engage seriously with an alternative Bill proposed by the opposition. A failure to do so in a serious and competent manner would have run the risk of turning away more informed voters and would have eroded the voting majority of the dominant party. On the other hand, if the MPs of the majority party had managed to show up the Bill proposed by the opposition as frivolous, unworkable or unpopular, the party would have been able to gain more support from voters currently supporting an opposition party or not supporting any party at all.
The judgment will not cure all the ills that beset our democratic Parliament. The culture within political parties, which requires strict party discipline and control of individual MPs by party leaders, are too strong for this. But it is a first small step towards making our democratic Parliament relevant once more.BACK TO TOP