The challenge is to not only have the South African Constitution, but to live it

President Cyril Ramaphosa receives the fifth and final State Capture Report at the Union Buildings in Pretoria on 22 June 2022. (Photo: Gallo Images / Alet Pretorius)

By Trevor Manuel

6 Feb 2024

For those of us with memories long enough, we know what life was like in the absence of democracy. We can neither take it for granted nor neglect the responsibility to refresh its tenets and presence and ensure that successive generations of South Africans cherish it in the same way.

The hugely significant political decisions announced 34 years ago laid the basis for the irrevocable changes that are manifested in our Constitution. One challenge that confronts us is how to ensure that successive generations are aware of the journey our country has traversed. Occasionally it seems the perceived urgency of the present overshadows the residue of the past that still casts a long shadow over the building of an inclusive, caring society.

constitution south africa mandela de klerk Nelson Mandela and FW de Klerk, the then South African president, receive the Nobel Peace Prize at City Hall in Oslo, Norway on 10 December 1993. (Photo: David Levenson / Getty Images)

President FW de Klerk took the plunge with an impact on each of his troika of responsibilities — as head of state, head of the National Party, and leader of a government that had presided over apartheid and thus the darkest period in the history of South Africa. The effect on each of those institutions was profound.

We can debate the conditions that led to the decisions on 2 February 1990, or how much persuasion was required to reach them, but we cannot debate the impact of those decisions on each aspect of everyday life.

The most fundamental and consequential manifestations that flowed from the decisions announced 34 years ago are now embodied in our Constitution. It is critical that we remind ourselves that it took more than six years to adopt the Constitution. These were years characterised by intense pain, tough negotiations, and the loss of too many lives — but the conclusions are indelibly there for all time, as articulated in the Preamble, the Founding Provisions and the Bill of Rights.

The intentions are clear, but we are talking about politics, always a complex topic. The outcomes depend on the nature of the mandate that political parties secure, on the communications of the government with the populace, and on the ability of the body politic to insist on accountability.

The continuous act of governing

Almost a decade ago, Michelle Bachelet, the then president of Chile, addressed an audience in Cape Town. She said, “Societies want to be consulted in a more complex and complete manner than just through their votes. Stemming from this demand a new objective is won for our institutions and for citizens themselves. And this demand to raise our standards beyond the strict legal sense, giving rise to new forms of dialogue and social consultation is the key for legitimising the entire modern democratic system.”

constitution bachelet Former Chilean president Michelle Bachelet. (Photo: Emilie Richardson / Bloomberg via Getty Images)

Bachelet’s observations are exceedingly important in South Africa today as we grapple with trying to understand what works, what does not, and why. Importantly, we must continually engage in discussions about how we can improve on all of society.

There is a surfeit of observations from the press and especially on social media platforms on how broken things are; similarly, there is no shortage of policy advice.

I do not want to be too precious about the outcomes of the National Development Plan (NDP), but it is worth remembering that a broad framework of matters in need of urgent attention are well canvassed in the NDP.

Almost 12 years have elapsed since the document was handed to political parties in Parliament, all of whom accepted the framework. The datasets are probably dated, but the essential identification of the actions necessary to produce the kind of country envisaged in the Constitution remains. Regrettably, there is insufficient evidence of a concerted plan for implementation.

Yet some of this work needs to be front-loaded — for example, the task of building a capable and developmental state has become increasingly important. This has been accentuated by the Zondo Commission, which devoted a large body of work to the discussion of the political-administrative interface. Strip away the jargon and this explains that ministers and senior public servants have different responsibilities in law and different frameworks for accountability at each level of government.

If you asked yourself, for example, what powers and responsibilities the SA Police Service Act designates to the minister of police, as distinct from those given to the commissioner of police; could you, in all honesty, say you know?

The same holds true for each Cabinet member — the primary task of a minister is to hold public servants in the relevant department accountable for planning and organising their work and for the use of public finances. Yet there is little evidence that this is how the administration is conducted.

The essence of the NDP was that the political-administrative interface be strengthened. This requires that public servants be “immersed in the development agenda but insulated from political interference”.

Resolving these matters is the task of governance. The Constitution sets out only “the principles according to which the state is to be governed”. It does not substitute for the continuous act of governing — which is about assigning roles and responsibilities, raising and allocating resources, and being held accountable.

This is the first and most critical breakdown in the South African polity. Calling it out for the purpose of seeking remedy is surely the number one task.

Measuring accountability

The second issue, and consequent upon the first, is the functioning of the institutions to which the executive — at national, provincial, and local government levels — are held accountable. This is a crucial, if badly underrated, task.

constitution cyril ramaphosa state capture zondo President Cyril Ramaphosa receives the fifth and final State Capture Report at the Union Buildings in Pretoria on 22 June 2022. (Photo: Gallo Images / Alet Pretorius)

One of the key matters relates to the accountability of members themselves. Paul Holden, in reflecting on the outputs of the Zondo Commission observes, “It noted that MPs, upon being sworn in, were bound by an oath to act in the best interests of the country. Surely, the commission argued, MPs should be bound to this oath rather than the directions of a political party that might be compromised by its own corruption and inaction.”

The third task relates to the measurement of effort and change. The Preamble to the Constitution states that its central purpose is to: “Improve the quality of life of all citizens and free the potential of each person.”

If we do not have the measurements or do not trust those that exist, how will we ever know that the government, in each sphere, is making an effort to implement the Constitution? As the adage states, “If you can’t measure it, you can’t manage it!”

It is important to apply the same norm to every aspect of public services — education, healthcare, the built environment, policing, access to energy, water and sanitation. No public service can be spared from scrutiny because the quality of citizens’ lives is measured by an amalgam of all functions.

This third task must be broken into two discrete elements. The first relates to the provision of a broad range of public services. The second relates to the benefits brought by a growing, inclusive economy where such matters as employment creation, battles against inflation, and access to food, goods and services are within reach.

The first part is provided for in the budgeting process. Each department contracts with Parliament (or the provincial legislature), to perform certain functions in exchange for receiving public finances. Sadly, this is not ever adequately utilised by legislatures.

The second part relates to a series of proper engagements between the government and business representatives focused on finding solutions to agreed problems. Holding out that increasing numbers of people on welfare grants is a victory for the government disrespects both the constitutional values and the poor themselves.

Opportunities for review

The fourth task relates to getting the public representatives that South Africa deserves. I am aware of the important debate of constituency-based vs proportional representation systems. But it does not even have to be one or the other.

There is no prohibition on all reasonable parties letting the candidate choices be known before the elections. This could set the basis for conversations with voters about matters such as the frequency of engagement and that crucial question of conscience and oath versus the party whip.

The idea that party bosses alone determine who the representatives of the people will be is profoundly anti-democratic. Obviously, the same holds true for party bosses who can capriciously dismiss public representatives.

The fifth task is to have open and public discussions about the operations of each of our major institutions of governance. Looking back on this day 34 years ago, the “what if?” question must arise: imagine the body politic had changed with time and not ossified, how much easier would the changes have been?

Or look outside of ourselves at the UN Security Council — it held its first meeting on 17 January 1946, when the UN had 51 member states. Today, the institution retains the same operational rules, including veto powers, notwithstanding that the UN now has 194 members.

For our collective survival, we must recognise that periodic elections are a woefully inadequate corrective measure. We must build in opportunities for review and adjustment to prevent crises of governance.

These tasks are eminently solvable. We must commit to tackling them if we value democracy. For those of us with memories long enough, we know what life was like in the absence of democracy. We can neither take it for granted nor neglect the responsibility to refresh its tenets and presence and ensure that successive generations of South Africans cherish it in the same way.

The challenge today is to not only have the Constitution but to live it. This requires the task of governing within its rules, in the interests of the many. DM

This is an edited version of Trevor Manuel’s address at an FW de Klerk Foundation event in Cape Town on 2 February 2024. Manuel is the current chairperson of Old Mutual and served as South Africa’s finance minister from 1996 to 2009.

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The continuous act of governing

Measuring accountability

Opportunities for review