The perils of stripping the magna from a carta
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.