Assumptions built into our constitution are untrue
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