SOUTH AFRICA: Editorial Demands More Participatory Democracy

The people shall govern

Source: http://www.thoughtleader.co.za/ahmedmotala/2008/08/15/the-people-shall-govern/

A few words from the famous Gettysburg speech of Abraham Lincoln in November 1863 are oft quoted as a simple, short definition of democracy: “government of the people, by the people, for the people”. Our own Freedom Charter adopted in June 1955 in Kliptown exalts that “no government can justly claim authority unless it is based on the will of all the people” and that “the people shall govern”. In the dictionary definition, democracy is “a system of government in which power is vested in the people and exercised directly by them or through their chosen representatives elected through regular free and fair elections”.

Our Constitution defines South Africa as a democratic state based on human dignity, non-racism and non-sexism, supremacy of the Constitution and rule of law and regular elections and a multi-party system of government. The Constitution also states that “This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.”

In South Africa therefore, democracy is more than the exercising of power by the people through freely elected representatives. It encompasses the rights enshrined in the Constitution and intrinsic values of human dignity, equality and freedom. The history of our country and the context in which our Constitution was born strongly influenced our definition of democracy.

What do these words that define democracy actually mean in practice? Should representatives of the people, once elected, make decisions based solely on their judgment? Are they required to revert regularly to the people who elected them on key questions of policy and legislation and obtain their approval? How often during their tenure are these elected representatives required to consult with those who elected them?

In South Africa direct public participation is through written submissions and public hearings arranged by Parliament on draft legislation. The Constitutional Court has stated that the commitment in our Constitution “to principles of accountability, responsiveness and openness shows that our constitutional democracy is not only representative but also contains participatory elements”. The Constitutional Court went on to extol the importance of public participation as follows:

“The participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist.”

The Constitution therefore imposes a duty on Parliament to facilitate public involvement to provide citizens with a meaningful opportunity to be heard in the making of laws that will govern them.

Recent public remarks by Maggie Sotyu, the ANC chairperson of Parliament’s portfolio committee on safety and security prior to the commencement of public hearings on the proposed legislation to disband the Scorpions undermine the genuineness of public participation. She stated that the dissolution of the Scorpions would go ahead regardless of the volume of written submissions and petitions sent to Parliament opposing the move. The will of the people does not seem to matter to Ms Sotyu. What matters is the will of the ruling party and she stated as much. Later comments by Yunus Carrim, justice committee chairperson, to reassure the public of the genuineness of public participation did not reduce doubts about the process. I can see a constitutional challenge brewing.

In Switzerland, public participation on constitutional amendments is through obligatory referendums. Political parties and interest groups can also subject federal laws to a referendum upon the collection of 50 000 signatures. Constitutional amendments can also be initiated through citizen initiatives upon the collection of 100 000 signatures within a period of 18 months, provided that the amendment does not contradict any international law or treaty.

The Swiss system of referendums, while allowing for direct participation of citizens in decision-making, is extremely expensive and can slow down political decision-making. However could it be appropriate in some exceptional cases such as the disbanding of the Scorpions? Or should the South African government be required to subject all Constitutional amendments to public approval through a referendum before adoption? For meaningful public participation through referendum there has to be a good understanding of issues being decided, which often can be complex. Has the electorate in South Africa reached a level of sophistication, including literacy and education, to be able to participate through referendums?

Should contentious public issues such as abortion and the death penalty be decided through referendums? Referendums should not be permitted on issues that affect the rights of others as public opinion alone cannot determine the rights of individuals. Rights should not be left to the prevarications of public opinion, which are regularly subject to change. Furthermore, the Constitutional Court is final adjudicator on constitutional matters, not the public. It is essential that we maintain rule by law in our country, not rule by public opinion. In June 1995 in its very first decision, the Constitutional Court said the following regarding public opinion:

“The issue of the constitutionality of capital punishment cannot be referred to a referendum in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest among us, that all of us can be secure that our own rights will be protected.”