South Africa's democracy is under threat after new developments involving attacks on our judiciary and our constitution.
I’m frequently criticised for not paying enough attention to South African news. But I do my best to pay attention to what’s really important and I’ve got my eyes on a political development that is threatening the future of South African democracy.
I’m sure if you’ve lived in South Africa that you’ve heard some variation of “our country is falling apart”, “we’re on the verge of civil war”, “we’re turning into Zimbabwe” or something to that effect. And, while we’ve always got to be mindful of the events that are slowly chipping away at the substance of South African democracy, you should treat alarmist predictions about our country with a pinch of salt. This is because South Africa, for all of its faults, has an incredible constitution.
There is no metric or ranking for the fundamental principles that dictate the structure of a government and the rule of law. You get data comparisons like those created by the Comparative Constitutions Project, but ranking a constitution is like ranking your favourite song or trying to figure out who is better between Lionel Messi or Cristiano Ronaldo… it’s based entirely on opinion.
The South African constitution is celebrated all over the world by legal experts like former United States Administrator of the Office of Information and Regulatory Affairs, Cass Sustein, who refers to it as the “best in the world” in his 2001 book, Designing Democracy: What Constitutions Do, a book which compares American constitutional debates and court cases and those in celebrated democracies from all parts of the world.
I’d prefer to steer clear of any discussion of race or even class here, because this is important for South Africa as a whole. It’s the only thing we really have left in our country… democracy. You can say whatever you like, blame whoever you want, but it’s plain for all to see that our infrastructure is failing, with rolling blackouts and pothole-laden roads, we are anything but a unified rainbow nation, our criminal-justice system, crime and policing, is utterly shambolic, and corruption is rife. We failed – and by “we” I mean our government. Yet, having a wonderful constitution has always been able to keep us from crossing the point of no return and descending into anarchy. That’s why we’ve avoided civil war, that’s why we somehow made it through Jacob Zuma.
In short, the most fundamental laws of the land have remained intact, largely due to the independence between our three branches of government: The executive, the legislature and the judiciary.
The official seat of the South African president (executive) is in the Union Buildings in Pretoria, our Parliament (legislature) is in Cape Town and our Supreme Court of Appeal (judiciary) is in Bloemfontein. That’s why we have three capitals. What prevents us from turning from a democracy to a dictatorship is the separation between our three branches of government. But, as we know, the ANC has held a monopoly over both the executive and the legislature from day one. A time where the ANC will not be winning the presidential election appears to be out of sight for at least another 10 to 20 years.
Now that Baleka Mbethe has been replaced by Thandi Modise as Speaker of the National Assembly, it seems the worst is over after five years of struggling to find a difference between Mbethe’s agenda and that of the executive.
However, Modise is currently in the process of potentially removing the Public Protector, Busisiwe Mkhwebane, from office in a motion put forward by the DA.
This is a case that will be drawn out for quite a while, but what we really need to understand is that this is a direct attack on a Chapter 9 institution, the part of our constitution that’s meant to protect our democracy. It’s still early days, but this is a development that even DA supporters should be opposed to, not for Mkhwebane’s own good, but for the future of the Public Protector’s office itself. It would be unprecedented. Attacking the position will have serious long-term consequences, if the outcome is Mkhwebane’s removal. In short, it’s an attack on the independence of critical parts of government.
Then, even more concerning, is the section 25 amendment bill, which would be the 18th amendment to the constitution. This issue is at the heart of political discourse in South Africa, and has been for over 25 years. It concerns the government’s plan to pursue the expropriation of land without compensation. And the latest response to the bill from the ANC, articulated by Chief Whip, Mathole Motshekga, is frightening.
Here’s a quick look at the amendment from parliament’s website:
The ANC is specifically addressing section 1 (c): “National Legislation must, subject to subsections (2) and (3) set out specific circumstances where a court may determine that the amount of compensation is nil.”
And they disagree with the formulation (as articulated by Motshekga above) and want the executive to decide whether or not compensation is nil. In short, they’d remove the powers that the courts have and take this body out of the equation entirely.
Even though it was the ANC that created this formulation in the original drafting of the constitution, Motshekga says “the earlier formulation was to ensure that we reach consensus. Otherwise we would have created controversy and we would not have been able to gazette the bill. And that could have derailed the process and we didn’t want to derail the process.”
And here’s the truth of the matter. The ANC have now made their intentions very clear: that they want the power to determine whether compensation must be paid in land expropriation to be in the hands of the president entirely. They want to remove the checks and balances from our courts. There must be no separation of powers and for this reason:
“[This is] what the ANC is saying,” Motshekga continues. ” You know we have the experience that the court processes are arduous, they take time and they require resources. But the executive is a democratic government elected by the people of South Africa; they represent the people of South Africa and they must govern. And we are not excluding the role of the courts, but we are not giving the courts the first opportunity to decide, because that will last [for] another 25 years.”
So the ANC is basically saying that they don’t want the courts to derail their agenda, and the easiest way not to derail the executive’s agenda is to take away the court’s power to do so. The executive decides who gets what for their expropriated land… and if you feel aggrieved by the decision, you can go to the courts after the fact and hopefully the court will serve in your best interests. And we’re doing this to save time and money. Of course, the courts have effectively been nullifying the ANC’s efforts to carry out critical legislative efforts like this for the last quarter of a century and that has been our saving grace.
And whatever your opinion is on the very touchy subject of land in this country, this is not just about land. This is about the future of South African democracy. If the ANC can just make ad hoc changes to the constitution, what’s to stop them from making changes to section 2, the Bill of Rights?
Here’s a quick history lesson: The Reichstag fire was the burning of the Reichstag (parliament) building in Berlin on 27 February 1933, just four weeks after Adolf Hitler was sworn in as the democratically elected Chancellor of Germany. The Weimar Republic (a democracy) fell apart after the Reichstag fire, which is now seen as a false flag attack, and it allowed the Reichstag Fire Decree to be signed into law. The decree was signed by President Hindenburg in an effort to stop communists from taking over Germany after the country was left in total disarray following World War I. It effectively suspended all civil liberties and surrendered all control over Germany to the executive, the head of State, the self-declared Führer, Adolf Hitler. The rest is history.
Germany desperately needed a response to curb a communist insurgency and protect the people by granting complete power to the führer so that he could efficiently deal with a need for urgent legislation. It was supposedly in Germany’s best interest to suspend civil liberties and circumvent the independent bodies that were set up to curb despotism.
South Africa urgently needs to solve “the land issue” and therefore we need to make amendments to our constitution and put power firmly in the hands of the executive. Meanwhile, our parliament is justifying an attack on a Chapter nine institution and because the DA is viewed by many as a benevolent opposition party, many people are supporting the motion to do so, while remaining blind to the bigger picture. Our judiciary is under threat. Parliament is dominated by the ANC, our executive is the ANC and the pillars of our democracy are crumbling. Whether it’s the ANC now or anyone else in the future, our freedoms are hanging by a thread.
Now ask yourself, with the state of our freedoms and liberties resting entirely in the hands of the ruling party, what’s really left of our government that distinguishes us from the regime that came before it?