Constitutional democracy is not serving South Africans, says KwaZulu-Natal premier Sihle Zikalala. Instead, it is impeding transformation. The ANC should debate throwing it over and substituting it for parliamentary democracy, he opines.
Zikalala points to a Constitutional Court decision setting aside procurement regulations to justify his views. The difficulty for him is that the judgment finds that the regulations are invalid on the basis that the finance minister had no legal authority to promulgate them under the Procurement Act. But this determination — a striking down because government conduct is not sourced in law — is one that may be made by courts whether operating under a system of constitutional democracy or parliamentary democracy.
Zikalala may in fact want a government without laws, or one where the law is whatever government proclaims it to be, but while plenty more might be said about his argument it is not a cogent case for parliamentary democracy.
Over at the UN General Assembly last week, SA put up an alternative text to the draft that was proposed by France and Mexico and was subsequently adopted, condemning the humanitarian crisis in Ukraine caused by Russia’s invasion. SA’s counterproposal made no mention of Russian aggression and was contemptuously rejected by way of a “no action” vote — though it did win fulsome praise from the representatives of Russia and Syria.
Mathu Joyini, SA’s ambassador to the UN, provided various justifications for the draft: apparently stripped of political elements, SA’s draft would more likely win greater consensus from the assembly (clearly not!) and it evinced the requisite impartiality and neutrality.
Fierce denunciation of SA’s draft came from Ukraine itself. Ukraine’s representative called it the “twin brother” of the draft Russia had submitted to the Security Council, which secured precisely one vote. Most damningly, he revealed that there had been no consultations at all with Ukraine on SA’s draft.
Here’s the irresolvable difficulty for SA and its UN representatives: how do you even get out of the starting blocks on consensus, neutrality, impartiality or any of the other justifications proffered by SA, when you haven’t even bothered to consult with the representatives of the people who are subject to the humanitarian crisis?
Why do I yoke these two recent but disparate sets of inexplicable conduct on the part of our government representatives? It isn’t simply to bemoan the quality of our governance or berate our government actors. The proposed solution requires that we understand the problems we’re addressing, and when the conduct and expression of the government is so entirely divorced from the arguments it gives us in justification we have little chance of truly comprehending the problem we’re confronting.
It is worth recalling here the culture legal scholar Etienne Mureinik said was to be the leitmotif of our constitutional order: a culture of justification. This requires that every exercise of power is justified, where the leadership given by the government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force of its command. Ours was to be a community built on persuasion, not coercion.
Where, as with Zikalala and Joyini, we have conduct adopted or statements made that are universes away from the reasons given, we the public are at a terrible loss. It is as if government actors are speaking a language we cannot understand and cannot ever hope to understand.
It is not so much that we are deprived of the opportunity of challenging such action — the courts will assess reasonableness and rationality on an objective basis. Rather we’re denied something more fundamental: the opportunity to meaningfully engage with our public representatives, of being convinced of the correctness of their actions by understanding the reasons they offer, or if not seeking to compel and persuade them of our positions.
Both outcomes — being convinced, or convincing — require that we understand why our government does what it does, that the case it offers in its defence is cogent, considered and made in good faith.
• Fritz, a public interest lawyer, is director of the Helen Suzman Foundation.
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