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.
Despite his legal troubles, his personal behaviour and his sometimes eccentric utterances, I have been trying to give Mr Jacob Zuma a chance to demonstrate that he will not be such a bad President of the country. When one listens to the fearful whining of some of the white callers to radio stations, one almost feels like defending our dear Msholozi. But the more Mr Zuma speaks, the more I worry that he fundamentally misunderstands the nature of a constitutional democracy and that he thinks the ANC is above the Constitution of the county.
I am not even talking about his strange flirtation with the death penalty or his staggeringly hypocritical statement that rapists should not have legal representation – although these statements are troubling, of course. I am talking about his view on the so called “two centers of power”.
When President Thabo Mbeki indicated that he wanted a third term as President of the ANC, many backers of Mr. Jacob Zuma opposed this move on the grounds that it would be unwise to have “two centers of power” – one residing in Luthuli House and one in the Union buildings. Ironically recent utterances by Jacob Zuma himself demonstrates just how troubling these two centers of power might be from a constitutional perspective.
City Press reports today that in a recent interview with the Financial Times Mr. Zuma stated that President Mbeki is now a lame duck and that he “no longer had much power as the head of state because the authority was now with Luthuli House.
“I don’t think that has been a debate. It can’t be a debate. You recall that, when you go for elections, since 1994, it is not the Union Buildings that go for elections, it is Luthuli House, the ANC that campaigns, that puts across the manifesto, what the ANC will do for the country if it is elected.
“And when the ANC is elected, it identifies cadres who must form government. Even when the government is existing, when you go for elections, government doesn’t go for elections. That must describe where power lies – power lies in the ANC . . . It is the ANC, this is the ANC government. It’s not a government of its own,” Zuma said.
At face value this statement suggests that Mr Zuma does not understand how a constitutional democracy works – especially the democracy part. It is true that we vote for political parties and that political parties compile the election lists that determine the composition of Parliament. This does give the leadership of political parties enormous power to determine who sits in Parliament – far too much power in my opinion.
But we do not vote for the leadership of political parties – only representatives of their members do that. Mr Zuma and the new ANC National Executive Committee, it must be remembered, was voted in by about 2200 people in Polokwane. The leadership of the ANC therefore are not accountable to the 15 million voters who voted in the last election – only to its own members.
Parliament and the executive, on the other hand, are accountable to the electorate. Once elected to Parliament those MP’s have a constitutional duty to interact with the public and not only to the party bosses that put them there. As the Constitutional Court has made clear in the Doctors for Life case, our Constitution establishes a mixed system of both representative and participatory democracy.
That means that elected officials and the executive has a duty to allow the public to participate in its decisions and must not merely rubber stamp instructions from Luthuli House. Our electoral system makes this more difficult than it might have been, because MP’s must keep one eye on the views of party bosses to ensure they are not bounced off election lists.
But they also cannot abdicate their law making responsibility to political party bosses elected by a handful of people in Polokwane. If they do, they would be undermining democracy.
But for Mr Zuma the ANC is more important than Parliament or the executive established by the Constitution. This suggests he thinks after an election ordinary voters have no say and must shut up and wait for the ANC to decide how to govern the country. In this view voters are mere voting fodder confirming the ANC’s divine right to rule and conferruing on them the power to do as their leaders see fit.
This is, as I said, undemocratic and also deeply insulting to voters. It is our government that governs the country – bnot the ANC’s government. To suggest otherwise is to suggest that we might as well scrap Parliament and the executive and give all power to Luthuli House to rule the country outside the constitutional structures with its checks and balances.
But then again, maybe Mr Zuma does not really think this and only said it because he thought this is what the newspaper wanted to hear. He seems to be rather good at that.BACK TO TOP