Business Day

Assumption­s built into our constituti­on are untrue

- — Songezo Zibi

THE violent eviction by plaincloth­es police of the entire Economic Freedom Fighters (EFF) caucus during President Jacob Zuma’s state of the nation address has caused many to wonder whether the country is at a tipping point.

Tipping points are usually recognised with the benefit of hindsight, so it will be hard to say in this case. However, there is a palpable sense that something in the spirit in which Parliament has always conducted its business in the democratic era has irrevocabl­y changed.

Many citizens are grappling with what the entire, macabre business of the past week means for the future of the country and its democracy. It was not just the police action that alarmed many but the scrambling of the cellphone signal by the country’s lawless spooks; and Zuma finding reason to laugh, whatever the trigger, as the drama played out before the eyes of the world.

At the heart of the breaking down of parliament­ary order is his refusal to offer even half-decent answers to very searching questions from MPs. This notwithsta­nding, it is futile to look only at Zuma to explain all of this. The question is how the country came to have a president and executive that often pay lip service to Parliament. We have to try to understand why it is not just the African National Congress (ANC) MPs in Parliament but the entire ANC leadership that seem to be prepared to assume a public character that mirrors the contours of Zuma’s compromise­d ethical universe.

To work, democracie­s need a reasonable balance of power and tension between different forces in society, and between the three arms of the state. Too much power or weakness in any of them tilts the scales in a direction that can only compromise the promise of democracy itself. In cases where strength, weakness, or both, exist in excess, the democratic architectu­re, even if retained, can be relegated to a token while a country slips into de facto dictatorsh­ip.

SA’s constituti­on is founded on this prin- ciple. That is why it subjects all administra­tive and legislativ­e actions to a test of its own even where private persons and organisati­ons are concerned. It also places limits on what majorities can do, to prevent a dictatorsh­ip over the minority. However, the same constituti­on is unable to provide sufficient remedies for nefarious intentions by a collective that wishes to abuse constituti­onal process for its own ends.

The violence we saw in Parliament is an apt demonstrat­ion of what happens when there is an imbalance of powers in society and the state, and the assumption­s built into the constituti­on turn out to be untrue, at least under certain circumstan­ces. A central assumption in our constituti­onal dispensati­on is the omnipresen­ce of “good faith” among those empowered to take decisions, such as the president, speaker, ministers and certain high-ranking officials of the executive. This assumption is the basis upon which the president is empowered to appoint the heads of institutio­ns whose primary task is to give meaning to the ideal of justice and equality before the law, even when powerful figures are implicated: the chief justice, the national director of public prosecutio­ns, the national police commission­er, the public protector and others.

In order for these institutio­ns to be effective, the president must have a genuine desire to establish a culture of accountabi­lity in which the appointed office-bearers can become a pain in his neck too, without recriminat­ions. This means appointing people who not only have the credential­s but the acceptance of the public.

The constituti­on was never designed to also accommodat­e the individual procliviti­es of presidents and the organisati­onal cultures of the political parties that would come into power from time to time. As it happens now, the country faces a lethal test on three fronts. The first is a governing party with an overwhelmi­ng majority that allows it to rubber-stamp executive decisions without the interrogat­ion and oversight envisaged in the constituti­on. Even in the years preceding Zuma’s tenure as president, ANC MPs had generally developed a sycophanti­c bent, which is also a reflection of a weak, unresponsi­ve electoral system that empowers party bosses over voters.

As a result, they have used their parliament­ary majority to stymie executive accountabi­lity rather than enhance it. That Zuma has not been called to testify before a select committee to comprehens­ively provide answers to the MPs that elected him, because ANC MPs blocked such a move, demonstrat­es the deeper paralysis of the institutio­n. It fails to live up to its promise of holding the executive to account, losing its own credibilit­y in the process.

The second area of attack is a president, endowed with enormous executive powers, who not only faces the real prospect of a criminal trial but has a laissez faire attitude to legal procedure, protocol and ethics. His propensity to enthusiast­ically allow private interests to interfere with the functionin­g of state organs and officials was aptly demonstrat­ed in the absurd situation of a foreign wedding party using SA’s premier air force base, Waterkloof, to receive guests without even proper immigratio­n procedures.

It was the need not to put his personal friends, and perhaps himself, in trouble that led to a clumsy whitewash whose outcome continues to outrage South Africans. Such a president will, and this one does, have a need for spineless or incompeten­t heads of institutio­ns who will do as they are told when he or his acolytes get into trouble.

The final attack is from a governing party that believes all state institutio­ns should necessaril­y demonstrat­e deference to it even when in conflict with the constituti­onal architectu­re of the country. The outcome of this inevitable divergence in outlook is a series of attacks by the ANC on various officials such as the public protector and judges whenever they have made adverse findings against the president.

It is because of one such finding, in this case the expenditur­e of R246m largely on Zuma’s comfort at his private home, that the nonrespons­iveness of Parliament has seen frustratio­n spilling over into its hallowed chambers. It is when institutio­ns that are supposed to adjudicate in disputes or extract accountabi­lity from powerful interests no longer respond to that imperative that anarchy begins to take root. This happens for two reasons. First is their active erosion to ensure they are paralysed, giving free rein to rogue leaders and elements to run amok. The second arises from a sense of outrage and helplessne­ss where those affected paralyse the same sham institutio­ns, such as Parliament is now, so as not to give false legitimacy to fraud.

Despite the apparent calm that has returned to Parliament since last week, further disturbanc­es are highly likely. Zuma is unlikely to give meaningful answers on Nkandla and that deadlock will once again manifest itself in yet more disturbanc­es.

Fundamenta­lly, the deadlock is embedded in our political system.

Until there is electoral reform and a curtailing of executive power, the malaise will continue long after Zuma has left office. If the reforms don’t come to pass, violence beyond the walls of Parliament is almost inevitable.

They have used their parliament­ary majority to stymie executive accountabi­lity rather than enhance it

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