The founders of our post-liberation constitutional dispensation set out, among the founding provisions of our supreme law, their intention that the people of South Africa should enjoy the fruits of what they described as “a multi-party system of democratic government to ensure accountability, responsiveness and openness”. The parliamentary sovereignty of the old order was thus ended.
Taken together with the expressed commitments to the values of human dignity, the achievement of equality and the advancement of human rights and freedoms under our Constitution and the rule of law, these words quoted above from section 1 of the Constitution sum up the basis upon which our Constitution should be regarded as the supreme law of the country.
Any law or conduct inconsistent with the Constitution is invalid and the obligations imposed by it must be fulfilled. It is so provided in section 2 of the Constitution. Chapter Two guarantees a wide range of human rights to everyone.
Between 1994 and 29 May 2024, SA has not in fact been a multi-party democracy. On the contrary, apart from a brief Government of National Unity (GNU) at the dawn of democracy, it has been a dominant-party State in which the tripartite alliance between the ANC, the SA Communist Party (which does not contest elections in its own name) and Cosatu has nodded in the direction of multi-partyism while pursuing its stated intention to secure for itself “hegemonic control of all the levers of power in society”.
This ANC-led project is in accordance with the tenets of the National Democratic Revolution which is the expression of the ideology that informs some in the broadchurch that was the initial ANC-led alliance back in 1994. It is not in accordance with that which is contemplated by the Constitution. Nor does it accord with the plans of the MK party to tear up the Constitution.
This notion of “hegemonic control” flies in the face of constitutional values and precepts such as the separation of powers, the independence of the judiciary and the Chapter Nine Institutions and the freedom of the media, to name a few. Without checks and balances on the exercise of political power, the accountability at the cornerstone of the Constitution is difficult to achieve.
In the first 30 years of democracy under the Constitution, the ANC has splintered several times, spawning breakaway entities like the UDM, Cope, the EFF and, most recently last year, the MK party. Each of these breakaways has, of necessity, weakened the striving for hegemony.
Now that the ANC no longer commands a majority of seats in Parliament, hegemonic control of the levers of power is, practically speaking, impossible. The ANC seems to be reconciled to this fact.
Constitution opponents
In our next Parliament, the seventh Parliament, the MK party and EFF will be the third and fourth largest parties represented with around 14% and 9% each of the votes cast.
Despite the fact that their parliamentarians are obliged to swear or affirm their loyalty to the Constitution, both parties actively seek to undermine the values of the Constitution in flagrant breach of the undertaking that they will “obey, respect and uphold the Constitution and all other law of the Republic” as the oath of office is worded. (The MK party is threatening to boycott the first session of Parliament on 14 June, 2024. It won’t help their parliamentarians to do so, as it is perfectly legal to get on with the business of electing the President, Speaker and Deputy Speaker without them.)
Read more in Daily Maverick: Two contrasting media briefings provide a glimpse of future behaviour of MK party and EFF
The importance of this preliminary step of taking the oath of office in the lives of those who grace the benches in the national legislature is cemented in the words of section 48 of the Constitution:
“Before members of the National Assembly begin to perform their functions in the Assembly, they must swear or affirm faithfulness to the Republic and obedience to the Constitution.”
Seeking to nationalise the Reserve Bank and upend the forms of expropriation the law allows by declaring “open season” on all privately owned land are planks of the EFF manifesto that do not accord with what the Constitution allows and contemplates, nor do their members of Parliament, whether alone or in tandem with the MK party, command the votes required to amend the Constitution to bend or amend it to their will.
The position of the MK party is more extreme than that of the EFF. It wishes to revert to parliamentary sovereignty, rein in our independent judiciary and, in essence, tear up the Constitution to enable a form of rule (not governance) that is best described as ochlocracy or “mob rule”.
Read more in Daily Maverick: Elections Dashboard
It is this tyranny of the majority that caused the MK party to aim at achieving two-thirds of the popular vote in the parliamentary elections held in May 2024. Even this mercifully unattained goal is not enough on a proper reading of the Constitution.
Replacing multi-party democracy under the rule of law in the way desired by the MK party involves amendments to section 1 of the Constitution that can only be passed “with a supporting vote of at least 75%” of the members of the National Assembly and with the support of at least six provinces in the National Council of Provinces.
Amendments to the Bill of Rights need to be supported by at least two-thirds of the National Assembly and also by six provinces in the National Council of Provinces. These provisions, themselves similarly protected, are set out in section 74 of the Constitution.
There are more than enough supporters of constitutionalism in the seventh Parliament to ensure that the extreme ideas of the EFF and the MK party will not materialise, even if they somehow co-opt the ANC with its roughly 40% of the vote in the election.
Massive hurdle
The MK party and EFF do not enjoy majority support in any province. This fact makes the required supporting vote of at least six provinces difficult to attain if radical alteration of the Constitution as contemplated by them is tried.
Under section 46 of the Constitution, our electoral system is required to result, in general, in proportional representation. At the time the Constitution was negotiated it was feared by some that a “first past the post” system, as was used in the parliamentary sovereignty of the old SA and is still in use in the UK, would result in the sidelining of smaller parties and the undermining of the “unity in diversity” that the Preamble to the Constitution contemplates.
The fact that in the next Parliament there will be 18 political parties represented, ranging from the minnows with one member to the ANC with 159 out of 400, is an indication that proportional representation is working, some would argue too well, and that striving for hegemony is not.
The ANC would do well to abandon the unconstitutional features of its National Democratic Revolution; it has been tried and tested for 30 years and has clearly been found wanting. Renewal of the ANC surely entails a review of its practical commitment to the values and principles of the Constitution. This applies in particular to its persistent failure to implement the rulings of the Constitutional Court in the Glenister litigation, which has left SA vulnerable to the scourge of corruption.
Low voter turnout
It is, sadly so, a cause for concern that so few potentially eligible South Africans chose to participate in the elections. Only 58% of registered voters turned up on polling day. Many more did not even bother to register to vote.
This means that the most popular party, the ANC with 40% of the votes cast, actually commands the vote of only 16% of those 40 million or so citizens eligible to vote. This is a reflection on the health of participatory democracy in SA and an indication of ignorance of or indifference to the importance of casting a vote.
Poverty, inertia, disappointment and even a desire to punish politicians may all feature in the decision of the “silent majority” of non-voters to stay away from the polling stations.
The poor turnout is a matter of concern to those who value the form of participatory democracy under the rule of law which is contemplated in the constitutional set-up in SA. There is a need to research the reasons for staying away and to engage in voter education and civic awareness campaigns, not only in election years but as a matter of course as part of the discharge of the mandate of the IEC to ensure free and fair elections.
Handbooks on the Constitution such as Know Your Rights, Claim Your Rights (available for free download), introduction of more civic awareness into high school curricula, and the use of social media to promote active citizenship are all strategies that are available to promote a healthier body politic and a better turnout in future elections. A budget for the research needed and for the education of voters is a prerequisite for which the IEC should actively lobby the new Parliament.
The threats on the part of the MK party to boycott the opening session of parliament are hollow, as has been explained by Prof Pierre de Vos on his “Constitutionally Speaking” blog. The MK party is getting poor legal advice if it thinks that it will gain anything other than publicity from a boycott. The professor’s conclusion bears repeating:
“But what is certain is that the stability of the incoming government will depend to a large extent on whether the leaders of the relevant parties have the political maturity to manage this volatile situation in the interests of the country.”
The results of the May 2024 election indicate that the dominant party State in SA is at an end and that there is now an opportunity to assert the openness, responsiveness and accountability that the Constitution requires in its envisaged multi-party democracy.
The “same-old same-old” politics of the last 30 years in South Africa are at an end. DM