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.
Remarks made over the weekend by President Jacob Zuma that he believed the governing African National Congress (ANC) “comes first” (instead of the country he is President of), elicited much criticism. And rightly so. But the remarks do point to the complicated and often fraught relationship in a constitutional democracy between any governing party and the two democratic arms of state – the legislature and the executive.
President Jacob Zuma is well known for making controversial statements when he does not stick to the (usually extremely boring and platitudinous) text of his speeches, written for him by his assistants. (I have always wondered why the Presidency does not employ a speech writer capable of making clichés and inanities sound at least vaguely interesting or plausible?)
Speaking at the ANC KwaZulu-Natal elective conference on Saturday President Zuma is quoted as saying:
I argued one time with someone who said the country comes first and I said as much as I understand that I think my organisation, the ANC, comes first… Because those people, if they are not part of the ANC and there was no ANC they could be misled. They could be under… oppression forever.
This view is interesting because it signals a belief that the ANC is the repository of freedom and democracy in South Africa. It arguably also displays a patronising view of ordinary South Africans (typical of benevolent patriarchs) as it depicts citizens as helpless bystanders who have very little to do with their own emancipation and with actively fighting for their rights and for justice in society.
This view is not easily squared with recent student protests, which demonstrated that progressive victories sometimes rely not on the benevolence of the party in power or on the actions of a liberation movement, but on the hard work and struggle of ordinary citizens (only some who may have chosen to struggle under the banner of the said liberation movement).
The view suggesting that the President believes that the interests of the governing party should take precedence over the interests of the country is also seemingly in conflict with the Constitution.
To understand why, it is important to note that the South African Constitution establishes the President as both the head of state and the head of the executive. In some countries the two positions are split, with the former playing a more ceremonial role and representing the interests of the country as a whole while thee latter representing the interests of the government of the day and the party who controls that government.
For example, in the United Kingdom, the Queen is the head of state, representing the country as a whole, while the Prime Minister is the head of the executive, representing the interests of the government of “her majesty” the Queen and the party in government.
(As an aside, personally I believe a monarchy is inherently problematic and difficult to square with a democratic culture as it assumes that some individuals are more worthy than others and should hold high office for no other reason than that they were born a king or queen. This is undemocratic and elitist.)
Section 83(a) of the South African Constitution confirms that the President is both the head of state and the head of the national executive. Section 83(b) affirms that the President must “uphold, defend and respect the Constitution as the supreme law of the Republic”. This means the President cannot ignore the Constitution when it is in the interest of the governing party to do so.
Where there is a direct clash between the interests of the party he or she heads and the Constitution, the president is constitutionally required to act against the best interest of the party. In any constitutional democracy, both the head of the executive and the head of state (if the roles are split) would be obliged to uphold the Constitution – even when it is not in the interest of the party the head of state or head of the executive is a member of, to do so.
But in South Africa, the obligations of the President extend beyond obedience to the Constitution. Section 83(c) enjoins the President to promote “the unity of the nation and that which advances the Republic”. This provision is associated with the role the President plays as head of state and signals that after being elected President, he or she fulfils two very different roles: an avowedly political role as the head of the executive and (usually) as the head of the governing party, and a non-partisan role as the head of state who places the interest and well-being of citizens above all else.
This obligation on the President to act not only as a politician advancing the interests of the party he or she belongs to, but also to act as a statesman or woman serving all South Africans, is affirmed in the oath of office that the President is prescribed to take in terms of section 87 of the Constitution.
The President swears in this oath (set out in Schedule 2 of the Constitution) to “protect and promote the rights of all South Africans” (not only those of the party he or she belongs to), to “do justice to all” and to “devote myself to the well-being of the Republic and all its people”.
All these provisions make clear that the President of South Africa is in an unenviable position of being obliged to head the government of the day in accordance with the mandate of the political party (or parties) which elected him or her as President of the country, while also having to act in the best interest of all South Africans – even when this is not to the advantage of the governing party.
There is a natural tension between these two roles as the former role may require the President to act against the interest of all those who did not support his party at the election by advancing the narrow interests of the governing political party he or she heads, while the latter role explicitly requires the President to devote him or herself to the well-being of all the people of South Africa.
In our system, the President is elected from among the members of the National Assembly (which means by the majority party) and thus has a mandate to implement the policies of the governing party (or any coalition of governing parties). There is nothing wrong with the President pursuing the implementation of such policies and the President will not fulfil his or her duties as head of the executive of he or she ignored the wishes of the governing party.
However, the President is also the head of state and is required during his or her term of office to act not merely as the head of the majority political party in government, but also as a head of state promoting the well-being of all South Africans.
For example, when called upon to sign a Bill into law, the President has a duty to determine whether the Bill is constitutionally compliant and to refer it back to the National Assembly or (at a later stage) the Constitutional Court if he or she believes it is not compliant – regardless of the view taken on this matter by the political party he or she represents.
This is a difficult position to manage successfully and requires a certain wisdom – especially in our system in which the President is required to retain the confidence and support of the majority party in Parliament. It may sometimes require the President to act in a way that disadvantages the majority political party in order to fulfil his or her duties as head of state. When the President do what is best for the country (but not best for the governing party) this may bring the President into conflict with the political party he or she leads.
A wise President, acutely aware of his or her dual role as head of state and head of the executive, would try to retain the confidence and support of the party he or she belongs to, while not acting in such an aggressively partisan manner as to suggest that he or she does not take seriously his or her role as head of state of the country.
To do so the President would avoid making statements that may create the impression that he or she places the interests of his or her party above the interests of the country. This would be so not only because such a statement would contradict the oath solemnly taken by the President, but also because it would diminish the status and dignity of the office of the head of state by suggesting the office of the President is exclusively a party political office.
If the President holds him or herself out as a mere servant of the political party who has elected him or her as President and not as a servant of all the people, it is difficult to argue that the office of the President should be respected because of the fact that the President also acts as the head of state.
(Of course, it’s important to note that while the office of the President should ideally always be respected in a democracy, the individual who is elected to that office because of his or her political position can not automatically expect such respect as no politician can automatically expect to be respected merely for holding a certain office.)
But where a President suggests that politics (and the loyalty to a chosen party) trumps all, it is not only the person that is exposed to criticism and ridicule: it also becomes more difficult to argue that his or her office should not be ridiculed or mocked. This is because the person holding that office would have signalled that he or she does not hold the position as head of state in high regard and does not consider the office as important as holding the office of political party leader.BACK TO TOP