The state of Israel, which portrays itself as the only true democracy in its region, has recently been experiencing ongoing, divisive, mass public protests. Then, Al Aqsa mosque in East Jerusalem was attacked. Much violence followed. Israelis were killed. Israel bombed Lebanon and Gaza.
Protest is in itself essential to democracy. But the reason for the protest makes one think about other requirements and, indeed, the future and very nature of democracy. Prime Minister Benjamin Netanyahu is proposing legislation to overhaul the judicial system by changing the appointment of judges and giving parliament the power to overturn supreme court decisions. Thus, many argue, he wants to limit the independence and function of the highest court and undermine an accepted pillar of constitutional democracy.
South Africa’s far from perfect present situation requires introspection, especially in this month of April, 29 years after our first democratic elections. The Constitution is often blamed for our many illnesses — as if it is the government of the day.
In June 2021, on these pages, I rated our performance regarding the fundamental human rights protected in Chapter 2 of the Constitution and opined that we had done quite well on the level of civil and political rights.
Mandated by the Constitution, our constitutional court has on numerous occasions set aside legislation and conduct of the executive, including the president, as constitutionally invalid. President Nelson Mandela’s early acceptance of a judgment against him helped.
Political parties come freely and go without being banned. We have voted regularly in fairly fair and free elections. No loser has claimed serious rigging, or victory. Well, not yet.
Freedom of expression, including the media, is alive and well. Those with money may move freely across provincial and other boundaries and in and out of the country. Recent protest marches were quite peaceful. And so on.
Generally courts are independent and accused persons — especially those with the means to hire good lawyers — receive a fair trial. Huge backlogs are seriously bothersome and the inaction or inability of the National Prosecuting Authority threatens the rule of law. Crime is a massive problem. And, by now we know that corruption is not limited to former president Jacob Zuma and the Guptas, but happens at many levels and devours us from the guts.
Many of our problems are related to the enduring, disabling, tragic poverty which stays with us — a state of disaster. Our Constitution caught the attention of the world, especially by the inclusion — alongside the civil and political rights — of socio-economic rights such as access to housing, water, medical care, education, social security and education. The motivation was that many civil and political rights mean little to the poorest of the poor. Free expression on the stage of a city arthouse hardly improves the life of the gogo who carries water on her head and the mother of the two-year-old who died in a pit latrine. It enables us all to know about pit latrines as the only sanitation of some, though.
The inclusion of socio-economic rights was not easy. One fear was that if constitutional rights become empty promises, the Constitution may lose all credibility and become irrelevant.
Are we approaching that point? On socio-economic rights we have thus far failed. Courts have given sound and useful decisions on housing and health care, but cannot build houses, hospitals and schools, or provide water. Almost three decades after the formal overthrow of apartheid, we are the most unequal society in the world.
To depend not only on the hard orders of courts, but to encourage the progressive achievement of socio-economic rights, within available resources, section 184(3) of the Constitution requires state departments annually to report to the South African Human Rights Commission on progress. For many years now, this has not happened. Is this not the blatant shameless breach of a constitutional obligation? In May 2022 I envisaged litigation to obtain a declarator to this effect, in an article in this paper. The directors of two university-based NGOs were enthusiastic. Nothing has happened.
“I lift up my eyes to the hills — where does (our) help come from?” cried the author of Psalm 121.
The United States was for long the world’s most popular example of constitutional democracy. Its supreme court and president James Madison gave us judicial review. But now “my role model is gone, gone …”, to quote Paul Simon’s words in Call me Al.
Nine-year old children are slaughtered on the schoolground with freely available assault rifles. Republicans refuse to understand that all constitutional rights, including to bear arms, can be legally limited. Not all of them are stupid; the lucrative gun industry is powerful. Talk show hosts use freedom of expression to broadcast that the murder of children is a hoax, a left-wing plot to disarm upright Christian patriots. Donald Trump lies big about the very core of democracy, a national election. Millions believe him. Where will the US be, if he wins in 2024?
A candidate for election as president, governor and — in several states — judge or prosecutor has to raise millions to get out of the starting blocks. Capitol Hill lobbyists present detailed bills to members of Congress, in exchange for great wealth to follow. As the narrator in Cabaret sings, “Money makes the world go round …”.
The Economic Freedom Fighters’ (EFF) Floyd Shivambo wrote that the Chinese application of Marxism is the way to go for Africa. In a few decades China has successfully elevated millions from poverty and given real meaning to socio-economic rights.
They allegedly want to change the current “rule-based world order”, dominated by the West. How? By increasingly trying to get representatives elected on international human rights structures, they draw attention to socio-economic rights, away from civil and political rights. They have approached one or more South African human rights institutions for cooperation. When the dependance of socio-economic rights on civil and political rights is mentioned, they smile politely. Why would one want to speak up, march, start a political party, or approach a court, if the government or party feeds you and gives you a house? So they argue.
Chinese streets are reportedly safe. Is this the result of the eradication of poverty, or of the death penalty and scant regard for fair trial rights? In Xinjiang they tortured and sent many Muslim Uyghurs to “re-education camps”, before developing the region.
Some demand that our Constitution be amended, overhauled, replaced or abolished. Arguments differ.
White right-wingers blame the Constitution for the load-shedding, potholes and crime, unknown in white areas before 1994. This opportunistic, dishonest, racist or dumb attitude is perhaps negligible.
Some see section 25 as the obstacle to “redistributing” or “taking back” land, after centuries of colonisation. Is the Constitution to blame, or government inaction?
In a recent television debate, representatives of Azapo said the Constitution had not failed. It has been very successful in achieving its goal, namely the protection of whites.
A member of the Pan Africanist Congress argued that the fair trial clauses were “contradictory”: torture is outlawed, but the right of an accused to remain silent protected. Is the presumption of innocence un-African? It may be possible to retain the presumption, but to limit the right to remain silent, as proposed by a retired judge some years ago. But, why does torture come to mind?
Academics involved in the useful study of critical race theory and decolonisation point out that the Constitution is the result of violent colonial conquest. Historically true, as a matter of physical causation. But, so is the existence of this author and millions of other South Africans. What now?
The Constitution must be abolished, they argue. They get irritated when one asks what a new dispensation will look like. They do not have to give a blueprint, they say. Surely a system could be so bad that it has to be destroyed, regardless of what may follow. Slavery, Nazism and apartheid may be examples. Are we there though?
A few basic indications will help. Assuming that there will be a written constitution, will regular elections be guaranteed? And free expression? Will there be separation of powers between the legislature, executive and judiciary? And — especially — will independent courts have the power to test the constitutional validity of government action and set it aside?
At this stage virtually all political groups refer to the Constitution and approach courts, or threaten to do so. Is this recognition, or revolutionary strategy? Young EFF members told a political scientist that they “play the game”, until they are in power. Adolf Hitler came to power through democratic processes, before wiping out democracy.
It cannot be business as usual for human rights and democracy thinkers and institutions. The world constantly changes. You never step into the same river twice, Herákleitos said. But, in the meantime it could do much good if all of us, but especially our rulers, obey and implement the Constitution for which so many fought so hard.
Johann van der Westhuizen, who assisted in drafting South Africa’s Constitution, is a retired justice of the constitutional court.
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