Land issue is bringing democracy under scrutiny

DEMOCRACY has its genesis in Athens in the late 5th century BC where democracy was conceived and practised by allowing all male citizens to be involved in its government.

Parliamentary democracy developed in the UK in the 19th and 20th centuries. In the wake of the American and French Revolutions, democracy was spawned, took root and developed in the US and ultimately in European continental countries.

The Interim Constitution of 1994 and the election in the same year changed South Africa from a discredited apartheid state, based on institutionalised discrimination, to an authentic and fledgling democracy.

The Constitution makes provision for a sophisticated system of democracy which has various aspects to it. This involves, inter alia, as set out in Section 1 of the Constitution dealing with foundational values, a “multiparty system of democratic government to ensure accountability, responsiveness and openness”. It also involves representative democracy mandated by “universal adult suffrage, a national common voters roll, (and) regular elections”.

Provision is made for direct democracy in Section 84 (1) (g), which authorises the president to call a national referendum and Section 17 allowing freedom of assembly, demonstration, picket and petition.

Provision is also made for participatory democracy which is primarily concerned with ensuring citizens are allowed a fair opportunity to participate or be involved in decision making on matters that affect their lives.

Participatory democracy complements representative democracy by augmenting and enhancing it, but does not supplant it. Therefore, as a supplementary aspect of our constitutional democracy, it is aimed at ensuring that while citizens confer a general mandate on elected representatives, they, as citizens, are not excluded from decision making in matters that concern them.

The sophisticated concept and practice of the democratic ideal has been articulated and insisted on by the highest judicial authority, the Constitutional Court, in inter alia, Doctors for Life International versus Speaker of the National Assembly. Justice Sandile Ngcobo held that “the representative and participatory elements of our democracy should not be seen as being in tension with each other. They must be seen as mutually supportive”.

The Constitution places the national and provincial legislatures under an obligation to facilitate public involvement in their legislative and other processes.

The nature of and whether it constitutes a justiciable constitutional duty was determined in the Doctors for Life case, where it was held that there had been insufficient public participation and therefore Parliament was in default.

It is for this reason tha the Free Market Foundation (FMF) and AfriForum voiced their disapproval of the procedure used by Parliament’s Constitutional Review Committee (CRC) with regard to the amendment of Section 25 to bring about expropriation of land without compensation.

The FMF threatened a court challenge, accusing Parliament of merely studying 0.01% of the submissions received relating to expropriation of land without compensation and the question of amending Section 25 of the Constitution dealing with property rights. For the same reason, AfriForum has filed a bid to halt the amendment.

The matter was due to be heard in the Western Cape High Court yesterday. It wants the CRC report to be set aside and not to be presented to both houses of Parliament. It alleges, like the FMF, that the report is flawed because it failed to take into account hundreds of thousands of submissions.

Parliament has indicated that it would oppose the application and proceed with the process.

The FMF’s view (The Star, November 21) is that the CRC has been selective in studying 0.01% of the submissions before recommending an amendment of Section 25. It alleges that the process has given rise to the suspicion that “there was a predetermined outcome”. AfriForum alleges that the CRC “abdicated its powers by allowing a third party to assess the written submissions”, which did not accord with parliamentary mandate to gauge public sentiment through a public participation process (The Mercury, Thursday).

What is clear from the Doctors for Life case is that there has to be “sufficient public participation” and therefore the extent and nature of participation is justiciable.

As a result, judicial review is able to take place in relation to the controversial issue concerning what appears to be a profound difference of opinion as far as the citizens and the public are concerned. Whether such a judicial review should take place in a process which has started is one of the vexed questions that the high court will have to deliberate on and answer.

Devenish is an emeritus professor at UKZN and one of the scholars who assisted in drafting the Interim Constitution of 1993.