South Africa must resist the gale of anti-democratic fervour

Richard Poplak and Diana Neille recently posed the question: 

“If democracy, whatever that word means, can flame out in South Africa, it can flame out anywhere. And it has, and it is.”  

Regrettably, this observation is almost trite as is shown in the burgeoning literature about the crises of the democratic model in the global world. (See, for example, How Democracies Die by Steven Levitsky and Daniel Ziblatt, and Crises of Democracy by Adam Przeworski).

https://www.dailymaverick.co.za/article/2022-11-04-episode-1-democracy-well-miss-it-when-its-gone/

Save for the narrow victory of Luiz Inácio Lula da Silva over Jair Bolsonaro in Brazil, it appears that many contemporary electorates do not regard democracy as a priority. Even in Brazil, more than 49% of the electorate voted for a proto-fascist, whose disdain for democracy is only rivalled by Donald Trump’s.

Speaking of the United States, the threat of a total Republican takeover of the legislative arm of government does not appear to have been fulfilled. The conquest, albeit narrow, of Congress by a Republican party in which even Richard Nixon would be regarded as a progressive alternative to the racist reactionaries of today, is deeply concerning. The Trumpist Republican Party’s conception of democracy is that as long as “we win” democracy is fine. Make America Great Again (Maga) equates to Make America White Again.

The continued evisceration of the US legal system in general, and the Supreme Court in particular, will continue. Elections may be less fair and free. A legal model that has lasted for some 300 years is under serious threat of being hollowed out even further.  That democracy matters to more of the electorate than the polls predicted is the one positive outcome.

By contrast, both Hungary and India, which at the time South Africa launched its constitutional experiment were held as exemplars of the transformative potential of a constitutional democratic system, now adhere to a form of autocratic legalism in which the legal protections and possibilities of constitutional democracy exist only in form as opposed to substance. These electorates are less concerned about democracy.

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Italy, invariably a political maverick, has turned to an ultra-rightwing government that represents the very antithesis of a liberal or social democracy which from time to time has been adopted in Italy.

The Israeli election has in the words of Haaretz newspaper produced a “quasi-fascist government” which is likely in the future to increasingly resemble an authoritarian theocracy rather than even having the pretence of democracy. Significantly, even the centrist Thomas Friedman writes that the Israel “we once knew has gone!”

In summary, democracy is under global pressure.   

It appears from comparative precedent that vast swathes of relevant electorates hardly care about the destruction of democracy. The resentment of “us” against “them” and the promise of politicians to look after “us” is far more important than adherence to a democratic system of governance.

This brings us to South Africa.

To sustain constitutional democracy in a country with such egregious levels of inequality and poverty was always going to prove challenging. In concluding his magisterial text on the foundations of South Africa’s Constitution, Professor André Odendaal notes that recently the idea of constitutional democracy “has received a bashing” through “a confluence of two completely different streams”.

In the first place, democracy has not distributed benefits widely enough to meet the needs of the marginalised majority. Poverty and inequality remain endemic.   

Second, the sustained process of State Capture and endemic corruption means that those who both orchestrated and benefited from State Capture now seek to achieve impunity by undermining the efficacy of the rule of law and law enforcement by denigrating the courts and the Constitution.  

Attacks on SA’s constitutional democracy

The beneficiaries of State Capture, and those who wish to perpetuate this project for their own financial benefit, find fertile soil to grow their attacks on constitutional democracy, given the lamentable failure, after more than a quarter of a century of democracy, for the gulf between the majestic aspirations of the Constitution and the degrading realities encountered daily by millions of South Africans to be narrowed.

Anti-democrats, whether in the US, Israel or Hungary, or the 49% that supported Bolsonaro, employ the same tactic: exploit the law in order to undermine democracy, while entrenching the divide between “us” and “them” and the claim that only “we” can transform the country. As is evident from litigation over the past decade, a section of the legal profession does not need a gold-embossed invitation to conduct lawfare to destroy the substance of the legal system.

The irony of history: this was a similar legal role to the one played by many pro-government lawyers under apartheid.

The manner in which law has been used in South Africa to defend the present Public Protector and to ensure that Jacob Zuma never has to face a criminal trial, and to subvert the decision of the Judicial Service Commission that Judge President John Hlophe should be impeached, to cite but three examples, represent the use of law to destroy the core of the constitutional enterprise.   

Abuse met by silence or neglect

Regrettably, the continuing abuse of law in this fashion has been met either by a stony silence or neglect on the part of institutions which should be concerned with defending the substance of the rule of law. The Legal Practice Council, for example, does nothing to prevent lawyers from shamefully manipulating the system contrary to any accepted standard of legal ethics or compliance with their duties as officers of the court. Ministers of state are permitted to launch vicious assaults against the judiciary and the very fabric of the Constitution with impunity.

Even more important is the manner in which populist politicians, in the same manner as has occurred in the US, Hungary, India or Israel, exploit the material conditions encountered by a significant segment of the electorate and employ toxic forms of identity politics to exploit patterns of inequality and poverty to promote these authoritarian causes. And, as is apparent from Fox News and regrettably from some at the main television channels in South Africa, these opponents of the substance of constitutional democracy are afforded prime-time interviews with breathlessly sympathetic interviewers.

For South Africa to resist this gale of anti-democratic fervour which now blows throughout previously entrenched democracies, great courage is required from those politicians who are constitutionalists. Also needed are the reconstruction of civil society coalitions deeply committed to a non-racial and non-sexist constitutional democracy, and a judiciary that continues to do its duty, no matter the abuse that is hurled at it.

In addition, it is imperative that institutions which are supposed to be the guardrails of constitutional democracy, including the Office of the Public Protector and the Legal Practice Council, perform their mandated duties. 

A country which has 250 years, of — albeit extremely imperfect — democracy, will soon partly be governed by Trumplings. Viewed from both the global and local contexts, the threat to South African democracy should not be discounted. DM