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GNU negotiations — SA’s Constitution provides a framework for political, economic and social policies

Professor Balthazar
By Professor Balthazar
9 Jun 2024
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If President Ramaphosa’s requirements for the establishment of a government of national unity are taken seriously, the Constitution must be the starting point for a consensus between parties.

There is no shortage of advice as to the tasks that await a government of national unity (GNU) in the event that one is formed by the end of the week. Apart from the statements of various political parties, the public discourse is awash with the views of libertarians, adapters of the Washington consensus on the one hand and Stalinist-type advocates mixed with a dash of populist identity politics on the other. 

However, if President Cyril Ramaphosa’s requirements for the establishment of a GNU are taken seriously, the Constitution must be the starting point for a consensus between parties who, ideological differences notwithstanding, are willing to be part of such a government.

And the Constitution does provide a framework for political, economic and social policy. In the first place, it promotes the values of transparency and accountability of government.

To borrow from South Africa’s finest academic public lawyer of his generation, the late Professor Etienne Mureinik, the Constitution was designed to promote a culture of justification over a history of a culture of authority. The exercise of public and private power which affects significant segments of the citizenry must be subject to legal scrutiny in respect of the justification of its exercise. The dictates of the leader, the chief and the bureaucrat cannot suffice without such scrutiny under the design of the Constitution.

The Constitution promotes the principle of substantive equality so that the formal idea of the majestic equality of French law, which prohibits both rich and poor from sleeping under the bridges of the River Seine (to quote Anatole France), is far too thin to fulfil our constitutional commitment. Our egregious racist and sexist history remains a starting point for the transformation of our society.

The Constitution protects a range of labour rights, including the right to strike, to form trade unions and to bargain collectively. The state is obligated within available resources to provide access to housing, health, food, water and social security, and the right to basic education.

In addition, the Constitution applies, where appropriate, to the exercise of private power.

Viewed holistically, this represents the design of a social democracy suitably tailored to South African conditions. What then does this mean for a GNU that is committed to the vindication of the Constitution and its vision for a democratic South Africa? 

Critical players


In the first place, it means ensuring that the state is capable of fulfilling these constitutional obligations imposed on it. Leave aside Cabinet ministers. The critical players are the directors-general and deputy directors-general (DGs and DDGs). No one holder of such an office should be appointed/reappointed without an independent inquiry into their assets and income. An independent panel must be constituted to recommend all DG/DDG appointments and only a recommended person can be appointed to such posts. Existing posts must be readvertised.

The National Prosecuting Authority (NPA) needs an overhaul. While there are excellent prosecutors within the NPA, far too little has been done to date to deal with State Capture, many of whose alleged perpetrators are going back to Parliament or are still in positions of influence and none of whom have been subjected to criminal prosecutions. A GNU has to ensure an NPA that’s fit for purpose.

Economic policy needs to be designed to meet the obligations imposed upon the state. The SA Revenue Service, which is the glorious exception of a competently run island in a sea of mediocrity and corruption, needs to be sufficiently capacitated to close the tax gap even further than it has achieved to date. A few billion more rands to match the finest AI, a small army of data specialists and additional tax expertise can raise significant billions of additional revenue which is needed for reconstruction.

Austerity, in the South African context, is not going to ensure the water, housing, food, health and social security needed to ensure that millions are not forgotten. Fiscal policy must be less concerned with the tax rate (obviously within reasonable competitive boundaries) and more with what the money is spent on. 

Without such steps to redress devastating poverty and stark inequality, the very legitimacy of the Constitution will continue to give way to national socialists, tribalists and other opportunists. That is the take-home from the 2024 elections, both from those who voted and those who see the present politics as a hopeless mess.

The government produced a National State Enterprises Bill, which seeks to improve governance and provide opportunities for much-needed private sector investment. It may not be a perfect piece of draft legislation but if implemented, it would exponentially improve governance and delivery. While a GNU could improve the present draft, legislation of this kind would signal that the rent seekers no longer hold sway and that the GNU is determined to ensure that the delivery of service, rather than the plunder of precious resources, is part of the new model of accountable government.

Whatever the composition of the GNU, it will require an agreement which binds the participants to ensure stability and it must be made public to promote transparency. 

In this connection, German precedent is instructive as Germany has generally been run by coalition governments. 

In Germany, coalition agreements, which may be set out in more than 100 pages, normally conclude with a brief overview of how portfolios are distributed and some general guidelines on coalition behaviour. As a minimum, these guidelines request that no coalition member votes with changing majorities and that none of the governing parties may introduce legislation without seeking the partners’ prior consent to do so. In allocating the portfolios, the partners aim to roughly represent the different parties’ proportional share of Bundestag seats, with the Foreign Ministry and another important ministry (such as finance or economics) being put in the domain of the smaller partner or partners.

Returning to the importance of SA’s Constitution, if the GNU can remain faithful to its basic vision, the 2024 election may yet prove that democracy in South Africa can work for all who live in this country. DM

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