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.
Calls by Helen Zille (and by several commentators) for the Parliamentary opposition to unite in order better to take on the increasingly floundering and seemingly corrupt ANC at the ballot box, are seductive. But given the distinct nature of our electoral system and the composition of political parties, in the long run a united opposition might do more harm than good.
The idea behind such calls is that a united opposition would be stronger than the sum of its parts. It is argued that such a “super opposition” – coming together under the flag of “constitutionalism” – would be better at holding the ANC government to account and would stand a better chance of reducing the ANC’s electoral dominance across the country.
The argument, so it seems to me, misdiagnoses the fundamental pathology underlying our political system. In South Africa the most successful political parties (the ANC and the DA) are “broad church” parties that try to cater to an assortment of ideologically distinct and socially diverse groups. The truth is that despite protestations to the contrary, there is little ideological coherence in either the ANC or the DA.
DA voters and public representatives include many deeply conservative former Nationalists, traditional liberals, rabid free market fundamentalists, fearful and sometimes racist social conservatives, forward-looking social democrats and some members of the emerging black elite disillusioned with the ANC and the increasingly corrupt government it leads. The DA talks about creating an equal opportunity society, but what really holds this coalition together – so it seems to me – is a fear of (and a feeling of antipathy towards) the governing ANC as well as the promise of access to power and resources that derives from DA incumbency in the Western Cape Province, Cape Town and other big towns across the Western Cape.
The ANC, on the other hand, has a tendency to paper over its ideological differences with talk of pursuing the National Democratic Revolution and racial redress. However, its voters include tribal chauvinists, patriarchs, communists, feminists, unionists, former Nationalists, social progressives, social democratic free market supporters, liberals and anti-capitalists. What holds this coalition together is the ANC’s fading allure as the party of liberation, the fear of a return to white domination and – increasingly – the patronage and power that is derived from being associated with the party that leads the government who dishes out tenders to friends and supporters.
In this context, political parties fulfil a peculiar and rather destructive role in our governance system: they act as empty vessels within which individual voters pour their fears, anger, hopes and sense of belonging. They increasingly attract ambitious (but often unprincipled) individuals to leadership positions and are forced to accommodate ever-more disparate ideological tendencies within their ranks. Concomitantly, they serve as repositories of the racial identities of many voters: many DA voters will never vote for a political party led by a black person while many ANC voters will never vote for a party led by a white person.
Instead of relatively unified political parties with a more or less clear ideological programme, the ANC and the DA have largely become parties who are held together not by what they stand for and support, but by what they are against and oppose. Party politics in South Africa has become a game in which scaremongering trumps ideology. Vote for the ANC and they will take your property and destroy the Constitution while stealing your taxes! Vote for the DA and they will re-impose racist, white domination and Apartheid!
Patronage and corruption thrive in this political environment. Many individuals do not join political parties out of ideological fervour and a principled commitment to a cause they view as noble, but rather because they seek access to power and financial rewards. The ANC, which has become ever more ideologically incoherent as it has attracted more opportunists and skelms into its ranks, is finding it increasingly difficult to control its members and preventing a drift to materialistic excess. And the government it leads can no longer afford to be seen to take decisive action against corruption in high places for fear of the ANC being torn apart by factions vying for power and access to tenders.
But mark my words: the more successful the DA (or an amalgamation of the DA and other opposition parties) becomes and the more opportunities it provides to its members to gain access to political power and financial rewards, the more often some of its leaders will be caught in tender scandals and the more one will read in the Mail & Guardian about how corrupt the party has become.
In the long run, would a newly unified opposition party, composed of ideologically diverse groupings from different classes and races, really be able to withstand the temptations of increased access to power and resources? In the absence of a clear ideological programme and a principled set of policies that go far beyond the empty slogan of defending the Constitution, I am not sure such a party could be kept together except through scaremongering and the dishing out of tenders and positions. (Anyone want to become the ambassador to TjikiTjikistan?) In other words, such a party is likely to be kept together by the same impulses that keep the ANC together: a hatred of the opposition and a fear of losing power and access to public resources.
Politicians in opposition are always great defenders of a justiciable Constitution because it limits the power of their opponents in government and can help to check the abuse of power by the government and can force it to be more open, transparent and accountable. But once in power, former opposition parties have a tendency to be less enthusiastic about the Constitution which they suddenly discover places pesky limits on their ability to do as they please.
For example, in the Western Cape, civil society groups have been trying or months to get access to a so called “confidential” Western Cape education department report on pupil transport in the province. This despite the fact that the DA government regularly lambasts the ANC government for suppressing so-called confidential reports. Once in government in the Western Cape, the DA has discovered that transparency is not always in its interest – no matter what the Constitution might say.
In any case, this call for a unified opposition also fails to appreciate that one of the advantages of a purely proportional representation electoral system like ours is that it potentially provides voters with meaningful choices, as they can choose to vote for any number of smaller parties they feel represent their interests. Where voters have limited electoral choices and where those choices appear unpalatable (I mean, a choice between the ANC and the DA, really), many voters will become apathetic and will abstain from voting.
Where an ideologically incoherent hodgepodge of forces join to oppose the party in power, many voters may be turned off by those aspects of the new party which they cannot stomach. Some white DA voters will be turned off by an influx of Cope members. And many Cope voters will be turned off by the remnants of the old National Party, that lurks in the DA like an egg inside a soufflé.BACK TO TOP