The per­ils of strip­ping the magna from a carta

CityPress - - Business - Terry Bell busi­ness@ city­press. co. za

Are we on a slip­pery slope to au­thor­i­tar­i­an­ism? It’s a valid ques­tion to ask since the con­sti­tu­tions of both labour fed­er­a­tion Cosatu and the coun­try have been un­der­mined.

And they were both, in their own way, flag bear­ers of the demo­cratic prom­ise of the new South Africa.

In the first place, had the rule of law been ap­plied within Cosatu, a na­tional congress would al­ready have de­bated – and de­cided on – the fu­ture of gen­eral sec­re­tary Zwelinz­ima Vavi and the Na­tional Union of Me­tal­work­ers of SA (Numsa).

So while the ma­jor­ity of the Cosatu ex­ec­u­tive wants them out, its con­sti­tu­tion dic­tates that it is up to all the mem­bers to de­cide. They have not been given the chance.

And had gov­ern­ment ad­hered to the rule of law as dic­tated in the coun­try’s justly lauded Con­sti­tu­tion, along with an or­der of the high court, Su­dan’s Pres­i­dent Omar al-Bashir would be un­der ar­rest and await­ing trans­porta­tion to the In­ter­na­tional Crim­i­nal Court (ICC) to an­swer to charges of war crimes.

Nei­ther Cosatu nor gov­ern­ment ad­hered to the rules, re­veal­ing that con­sti­tu­tions can be­come no more than worth­less pieces of pa­per. And there was also a great irony in the fact that the South African Con­sti­tu­tion, with its re­quire­ment — un­der Chap­ter 14 — to obey rat­i­fied in­ter­na­tional law, was un­der­mined on June 15.

This was the 800th an­niver­sary of the sign­ing of the Magna Carta, the “Great Char­ter” that re­moved the ar­bi­trary rights of an English king. It is per­haps the old­est such doc­u­ment in ex­is­tence and hailed as the ba­sis for many sub­se­quent and in­creas­ingly demo­cratic con­sti­tu­tions world­wide.

But the whole idea of the rule of law, of ev­ery­one in so­ci­ety be­ing, at least in prin­ci­ple, equally bound to fol­low the rules agreed and laid down, dates back thou­sands of years and through­out the con­ti­nents of the world. How­ever, even to­day, con­sti­tu­tional democ­racy pro­vides only a ve­neer of equal­ity.

French au­thor Ana­tole France summed it up: “The law in its ma­jes­tic equal­ity for­bids the rich as well as the poor to sleep un­der bridges, to beg in the streets, and to steal bread.” In other words, demo­cratic de­ci­sion mak­ing and equal­ity un­der the law are largely mean­ing­less in grossly un­equal so­ci­eties where many have no choice as to how and where they live.

This is part of the global re­al­ity that gave rise to of­ten in­tensely demo­cratic or­gans es­tab­lished by the sellers of labour to re­sist the ex­ploita­tion and in­equal­ity in­her­ent in the sys­tem. These trade union con­sti­tu­tions usu­ally stress worker con­trol, with lead­er­ship an­swer­able to, and re­callable by, the mem­ber­ship.

In prin­ci­ple, Cosatu qual­i­fies on this score. How­ever, in prac­tice, im­por­tant pro­vi­sions of its con­sti­tu­tion have been ig­nored and were jus­ti­fied by a dis­tor­tion of con­sti­tu­tional pro­vi­sions. But the rem­edy lies with the mem­bers of af­fil­i­ated unions. It is they who can ei­ther ac­qui­esce in what has hap­pened, or act one way or the other to ef­fect real change.

Gov­ern­ment and its re­la­tion­ship to the ICC and the Rome Statute that es­tab­lished it is in much the same po­si­tion: it ig­nored rules to which it agreed and is bound by. And, as in the Cosatu case, pro­vided a spu­ri­ous jus­ti­fi­ca­tion.

Ac­cord­ing to gov­ern­ment, the coun­try has an “im­mu­nity law” that su­per­sedes its obli­ga­tions un­der the Rome Statute. Iron­i­cally, this jus­ti­fi­ca­tion was made in the Nether­lands, home of the ICC, by Vusi Bruce Koloane, now am­bas­sador to that coun­try.

He was the man who took re­spon­si­bil­ity for the now no­to­ri­ous “Gupta plane” episode at the Waterk­loof mil­i­tary air force base in 2013.

Gov­ern­ment can now walk away: re­sign from in­volve­ment in the ICC. Cosatu unions may do the same: by split­ting. Or they can main­tain unity af­ter a prop­erly con­sti­tuted and demo­cratic congress.

But prece­dents have now been set that un­der­mine the rule of law. And that is a real cause for con­cern.

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