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.
What do we mean exactly when we talk about our South African democracy? Some among us (as one of our former Presidents used to say) seem to believe that democracy is only about five-yearly elections in which the ANC gets a mandate from the people to govern the country in between elections as it sees fit. Others think democracy is about allowing ANC members (regardless of who paid for their membership fees) to elect a new leadership and adopt policy positions at its five-early conference, coupled with oversight of the government by the elected ANC leaders at Luthuli House.
Others, yet again, believe (maybe because they will never win elections) that democracy is about “effective opposition” and about opposition parties shouting and screaming and moaning bitterly about the excesses of the governing party. The rich and powerful often seem to think democracy is all about making large donations to political parties or befriending politicians by lavishing them with shares, whiskey and cash in order to secure political influence and contracts or to “buy” the economic and political stability required to continue making obscene amounts of money for CEO’s and shareholders.
And, of course, in selfish South Africa, democracy for many means no more than always getting your own way and screaming blue murder and complaining about a scandalous infringement of your rights (maybe because of a conspiracy/racism/”reverse-racism”/arrogance/or abuse of power) when what you want is not handed to you forthwith.
In South Africa – so its seems to me – most of us are in favour of democracy (even if some are more grudging about the need for this than others), yet we do not share an understanding of what such a democracy should look like. Maybe it is time to start a discussion about the nature of the kind of democracy we would like to see flourishing on this southern tip of Africa.
As a constitutional scholar, my starting point is the Constitution, most notably section 1(d) which states that ours is a sovereign and democratic state based on “[u]niversal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.
Accountability. Responsiveness. Openness.
Of course, our Constitution contains all the formal trappings of democracy, which the Constitutional Court has stated contains aspects of both direct democracy (regular elections) and participatory democracy (the right of citizens to take part in the decisions of the legislature and executive). However, in the absence of a culture of accountability, responsiveness and openness, these formal trappings of democracy cannot provide us with more than an impoverished form of democracy.
What is required, it seems to me, is for the political, community and business elites to embrace a culture of justification (as Prof Etienne Mureinik memorably called it) within the disciplining framework of the Constitution. Such a culture of justification must not be equated with a legalistic and formalistic justification of outrageous, immoral or incompetent acts as this merely allows the powerful to hide behind laws, processes and structures to avoid real accountability to those who really matter: the ordinary, long suffering citizens who rely on the state and private institutions to create the environment which would deliver “a better life for all”.
A culture of justification would require ministers to do more than to point to the Ministerial Handbook to justify the purchase of outrageously expensive cars and extended stays in the most expensive hotels. A real culture of justification would require a mayor to explain why her team had never realised that the budget for the Cape Town BRT system was wrongly calculated and would not allow her to justify this by blaming a low-level official for the balls-up.
It would require a Minister to explain to Joe Slovo residence why they are being forced to move to far off Delft when other land much closer to the city (but too close to land owned by powerful business interests) were available. A Public Protector would have to explain why he needed a R7 million golden handshake for merely doing his job and how such a handshake would improve the lives of ordinary South Africans. A mayor would have to go to Phiri and justify to residents why their community was singled out for the installation of pre-paid water meters while the rich white folks in Sandton would continue paying for water only at the end of the month.
A culture of justification seems to me the antithesis of a culture of contempt, which treats voters as gullible children to be bamboozled and blinded with empty promises and legalistic arguments devoid of any ethical substance.
If our society embraced a culture of accountability it would not mean that those in power would always have to follow the wishes or dictates of the community to the detriment of the country or of other communities. Sometimes people in power must make unpopular decisions for the greater good, but when that happens, such decisions must only be taken after the needs of the affected communities have been recognised and considered and after the relevant person or body has accounted to those affected.
In such a democracy, the government of the day will not act contemptuously towards those whom they are supposed to serve, but would respectfully take their individual needs into account. Instead of top down democracy, a bottom up democracy will emerge. Although the needs of the few will sometimes have to yield to the interest of society as a whole, it will not be left up to bureaucrats and political and business elites to decide what is best for communities (but really, would usually mean what is best for them and their friends) and then to implement the policies without having to justify their decisions to those it might affect.
Implicit in a culture of justification is a recognition of the need for an ongoing democratic dialogue between the rulers and the ruled, an openness to change and an understanding that different communities might need different things at different times.
In a constitutional state this dialogue will not necessarily lead to a kind of oppressive communitarianism, because the Constitution – especially the Bill of Rights – places constraints on everyone to act within the pre-determined rules which protect the marginalised and the vulnerable from the tyranny of the majority.
Of course a culture of justification can only flourish where people respect one another, where they talk and listen to each other and where disagreements are not dealt with by issuing insults and death threats. Sadly, most South Africans (and to some extent the media) seem to have a vested interest in the shouting and screaming as it serves their immediate political, emotional and class interests. But maybe, just maybe (I know I am hopelessly romantic and naive here), starting a conversation about the kind of democracy we want and deserve can begin to change all this.
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