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.
On paper, South Africa’s Parliament with its two houses – the National Assembly representing the interests of all people and the National Council of Provinces (NCOP) representing provincial interests – is supposed to be the engine room of democracy. It is also the institution which is supposed to represent the interests of all the people of South Africa.
It is the National Assembly that elects the President and can also fire the President if it loses confidence in the President. The National Assembly is also tasked with looking into allegations that the President is guilty of a serious violation of the Constitution or the law, serious misconduct, or inability to perform the functions of office, and it is the National Assembly who can impeach the President if it finds this to be the case. The President and his or her cabinet are accountable to Parliament and can be summonsed to Parliament to explain their actions. Parliament can in fact summons any person to appear before it to give evidence on oath or affirmation, or to produce documents and can require any person or institution to report to it.
Yet, our Parliament does not always fulfil its task as the engine room of our democracy and cannot be said to be the Parliament of the People. This morning I spoke at a conference on South African Legislatures organised by Civil Society Groups. The conference, entitled “People’s Power, People’s Parliament”, is exploring ways in which civil society (in all its manifestations) can effectively engage with Parliament and can ensure that legislatures truly represent the interests of the people.
I contended that this discussion often happens in a vacuum, in that we ignore the dominant role played by political parties in our system of government. Implicit in our entire system is the view that the locus for influencing politics is through influencing political parties. We speak incessantly about the need for consultation on governance issues and the need to facilitate public involvement in law making, but these procedures and processes are often empty and ineffective because our representatives in Parliament represent political parties and are required (through the strict enforcement of party discipline) to follow the party line come hell or high-water.
Often, change happens because the leaders of political parties have been convinced to change their positions at informal events or forums, far away from the formal Parliamentary processes. Members of Parliament are then instructed to implement these changes, regardless of any input they might have had from ordinary members of the public during the process of public participation.
Often those people elected to the National Parliament or Provincial Legislatures cannot afford to be seen to listen to the voices of ordinary members of the public or to civil society groups if this will clash with a clear mandate decided on by the political party leadership, as they will be accused of ill-discipline and may well be “redeployed” (or whatever the DA equivalent of this might be) to a third rate job in some backwater where they will not be able to thwart the wishes of the party leadership, a party leadership that might be democratically “elected” only in the narrowest sense of the word by a completely unrepresentative selection of members of the relevant political party at an elective conference.
This does not mean that political parties do not engage with powerful role players and that they are not often willing to change their positions on important issues based on their engagement with non-party groups. Some of us – due to our position and status, our specialised knowledge about the Constitution and the law, our ability to influence the population through our access to the media, and our ability to formulate cogent arguments and disseminate and sell those ideas to others – are seldom entirely ignored by the governing party when we criticise draft legislation or acts and omissions of the legislature.
Some civil society organisations can similarly not be ignored because they have access to financial resources and can use this to help mobilise concerned citizens and (if they are skilful) can create public sympathy for their cause through their organisational muscle, their skills at mobilising public opinion and their ability to prick the conscience of the various factions within the governing party. Then there are local big business, international business interests and foreign governments who often work behind the scenes to promote or sell their ideas to the governing party. Often these institutions make huge donations to governing parties or threaten governing parties that they will end contributing to the party coffers. International companies will threaten disinvestment from the country or will similarly threaten to stop “bribing” the governing party through its donations, placing enormous pressure on the party to take this or that stand on an issue of the day.
In all of this, relatively weakly organised and under resourced civil society groups or civil society groups whose message may not be popular with those in the chattering classes who control access to the media, will not be heard by either political party leaderships or by the representatives of political parties in Parliament who often act as a rubber stamp for the decisions of that party leadership (if the party leadership is not completely paralysed by a fear to make any decisions whatsoever). The voices of individual citizens who lack the required status or the technical legal knowledge to be heard, who have no money to challenge decisions in our courts and do not belong to well-organised civil society groups, who do not serve in powerful positions within the governing party will almost never be heard.
Some people say that we can fix this problem and we can make Parliamentarians truly accountable and responsive to the needs of the people (instead of to the needs of special interest groups and big business bribers) if only we changed the way in which Parliamentarians were elected. If we moved towards a mixed electoral system similar to the one that applies in local government elections, that would change everything. But of course, the fact is that our councillors are not nearly as accountable and responsive as we want them to be (and many of them are even more beholden to the money interests of the tenderpreneurs than our MP’s at the national level), which suggests that merely changing the electoral system will not change much.
It seems to me that other steps would also be needed to address the democracy deficit in our Parliament. First, we need to break the power of political parties and their leaderships over the individual MP’s, by opening up elections for positions as MP’s to all party members in the constituency or the region, by insisting on a level of openness and transparency in the election process and by introducing strict rules to limit the corrosive influence of money on party political elections.
Second, we need to understand that even then political parties in government will only engage seriously with civil society groups or individuals if these groups or individuals are perceived to have power and influence. Only civil society groups that are well-funded, well-organised and transparent, have managed to gain the respect or even trust of members of the media and can easily disseminate their ideas through the media, and have a coherent programme of action that is not based on serving the interests of the rich and powerful, will gain real influence in our democracy. Individual citizens will seldom have a real impact on what happens in Parliament. They will have to join Community Based Organisations, will have to mobilise their constituencies and work out coherent strategies that will force political party leaders and representatives to take them seriously.
In short, in a system like ours in which political parties – for better or for worse – play a decisive role in the governance of the country, the ideal of a People’s Parliament will remain a pipe-dream. But if ordinary citizens became more active and organised and demonstrated a preparedness to mobilise not only inside political parties but also outside them, our Parliament might yet be saved from the corrupting influence of the rich and powerful.BACK TO TOP