Campaigners must factor in their legacy
The push to make today better may be making the future a whole lot worse. The campaign to remove President Jacob Zuma poses no problem for democracy’s future: citizens are entitled to try to eject a head of government. But there are growing signs that the campaign is prepared to lay down markers to achieve its goal that are likely to come back to haunt democracy after Zuma has gone.
One example was discussed in this column — attempts to use the courts to decide who should be appointed to the Cabinet. Opposing this is a sure ticket to being labelled a pro-Zuma hack but, if the courts agree, the door may be opened for judges in the future to remove ministers, and to constrain a president, who the current campaigners support.
Two other examples are now in the news. First, the public protector’s report on Absa and Bankorp has shown that the demand for a protector with binding powers is very attractive when the incumbent is campaigning against state capture, far less so when she wants to change the Constitution on behalf of patronage politicians and their donors.
A public protector with binding powers that can only be overturned by the courts may be a good idea in principle. But when lawyers who not long ago declared that the office’s powers were not binding began insisting that they were, what they had in mind was less a rule that would endure for all time than a means of strengthening Thuli Madonsela in her fight for cleaner government.
Because previous public protectors had either held government to account or found reasons to leave it alone, they did not imagine an incumbent who would use her binding powers actively to fight on behalf of the faction Madonsela and the lawyers were trying to curb.
It is not clear how great the damage will be. Courts may review Busisiwe Mkhwebane’s reports in ways that allow the public protector to hold government to account without waging factional battles. But we may also face years of legal trench warfare that will cause harm whatever the courts find. It is highly unlikely that any of this was anticipated when the push for binding powers began.
A more clear-cut example is the campaign for a secret ballot when Parliament votes on a motion of no confidence in the president. Now that the Constitutional Court has confirmed the obvious — that the Speaker of Parliament can decide this — it is not out of the question that the campaigners will get their secret vote. This will leave democracy here with the worst of both worlds.
A secret ballot is unlikely to affect the outcome: ANC MPs, either out of conviction or because they know that anyone determined to bully them into voting a particular way will find out how they voted in a secret ballot, are likely to vote overwhelmingly against the motion even in a secret vote. But a precedent will have been set: we may have more votes like that which befell the DA in Mogale City, when a secret ballot enabled one of its councillors to vote out the mayor, forcing the party to make its councillors take lie detector tests. Voters still do not know who voted against the mayor because they were denied the best lie detector of all, an open ballot.
The way will also be opened for corruption — it is a lot easier to buy the votes of MPs if they can sell out their voters in secret (no, the givers of bribes don’t know for sure who voted which way, but they presumably only pay if the vote goes their way!)
So the result could well be no vote to remove Zuma and a legacy of secrecy that will hamper democracy for years. The campaign to ensure binding powers for the public protector may empower the president and his allies as well as weakening them. The cost of ignoring the future may far outweigh the hoped-for short-term benefit.
Even if attempts to solve the problems of the present by creating new ones in future were sure to achieve their immediate result, we would need to ask whether the price is higher than democracy should be expected to bear.
The need to keep the courts out of cabinet appointments and to ensure that public representatives vote openly so that voters know what they do will outlive Zuma — as will the need to balance a meaningful role for the public protector with limiting that office’s power. There is no sign that the righteous indignation of the campaigners leaves any room for thinking about the legacy they may be leaving.
If campaigners are prepared to mortgage the future, there is no reason why most citizens should agree to do the same. Public opinion should insist that those who suspend principle to win today account for what they are leaving us tomorrow.
IT IS HIGHLY UNLIKELY THAT ANY OF THIS WAS ANTICIPATED WHEN THE PUSH FOR BINDING POWERS BEGAN
Friedman is research professor with the humanities faculty of the University of Johannesburg.