The ANC majority – our constitution – domination and democracy …

 Read here on the burning issues of our democracy in South Africa:

THE F W DE KLERK FOUNDATION RESPONDS TO RECENT COMMENTS OF MINISTER BLADE NZIMANDE REGARDING THE RIGHT OF THE MAJORITY TO RULE

The F W de Klerk Foundation has read with interest the latest views of Blade Nzimande relating to the principle that “the People Shall Govern: The principal and supreme foundation of our democracy.”

Mr Nzimande is very critical of the media, opposition parties, the courts and NGOs ‘like the F W de Klerk Foundation’ which he believes are trying to subvert the right of the majority to govern. In support of his views in this regard he cites the declaration in the Freedom Charter that “the people will govern!” He says that the Freedom Charter “constitutes the fundamental basis of our democracy.”

Well, of course, it doesn’t. The Freedom Charter is the mobilisation document of the ANC – and as such has played an important and generally respected role in our recent history.  However, the foundation of our democracy is our Constitution which was negotiated and adopted by parties representing a large majority of all South Africans and of all our communities. It belongs to all of us.

Our Constitution makes full provision for government by the elected representatives of the majority of our voters.  It endows the government that they elect with all the powers that it needs to carry out the mandate it receives from the electorate. The people do, indeed, govern. However, because our new society is based on the supremacy of the Constitution and the rule of law, the Constitution requires that all laws and executive conduct must be compliant with the Constitution and the Bill of Rights. Mr Nzimande cannot be opposed to this because, as a Minister, he has taken an oath to uphold the Constitution which places reasonable restraints on the ability of the majority to do as it pleases.

In this manner, the Constitution protects the rights of individuals and minorities however defined. Mr Nzimande should understand that in multicultural societies like our own, such safeguards are particularly important in assuring that the reasonable rights of minorities – whether they are political, economic, cultural, language, or sexual – are not violated by an unrestrained majority. International conventions to which South Africa is a party also require respect for the reasonable protection of the cultural, language and education rights of minorities.

Such protections are clearly necessary when a senior minister feels free to express the racially hostile sentiment that “the overwhelming majority of the white minority were deadly opposed to majority rule.” In fact, at the urging of President De Klerk, almost 70% of whites voted in the 1992 referendum in favour of the continuation of negotiations which everyone knew would culminate in majority rule.

Mr Nzimande’s understanding of the role of the courts in our democracy also appears to be less informed. In a recent judgement of the Supreme Court of Appeals in Democratic Alliance v President of the Republic of South Africa & others 2012 (1) SA 417 (SCA), the court held: “Section 1(c) of the Constitution proclaims the supremacy of the Constitution and the concomitant of the rule of law. In fulfilling the constitutional duty of testing the exercise of public power against the Constitution, courts are protecting the very essence of a constitutional democracy”. Simply stated, our courts have an imperative role to play in keeping the legislature and executive true to the Constitution.

Of course, the Constitution can be amended, subject to the constitutionality of such amendments. In this regard, our courts have an important role to play in reviewing the amendments effected by the legislature so as to control public power premised on the Constitution and the rule of law. Ordinary provisions can be amended with a two-thirds majority but the founding values – which encompass the essence of our non-racial democracy – can be amended only with a 75% majority. All constitutions must evolve with time – but it is generally accepted that such amendments should be considered only in special circumstances and after the broadest possible consultation.

There is one section of the Constitution that we believe should be changed if we really want the people to govern. Perhaps, Mr Nzimande will join us in a campaign to do so? It is section 47 (3) (c) which provides that a person loses membership of the National Assembly if that person … ceases to be a member of the party that nominated that person as a member of the Assembly…”  In other words, the people, through their representatives do not govern.  The party bosses govern. There is virtually no accountability of members of parliament to the electorate between elections. How, then, can they govern?

Mr Nzimande expresses amazement at what he terms “a huge outcry, manufactured in the media and the ranks of the opposition that there is a threat to our constitution.” Yet , it was the ANC itself – and not these “anti-majoritarian”  formations – that  stated only last month that the constitutional compromises in “our first transition” have “proven inadequate and inappropriate for our social and economic transformation phase.” It was the ANC’s own constitutional guru, Adv Ngoako Ramathlodi, who last September launched a comprehensive assault on the Constitution.

Let us make it perfectly clear: We fully accept the right of the elected representatives of the majority to rule within the framework of the Constitution.

However, while we are considering this critically important right, we would like Mr Nzimande to inform us how it could have happened that a President was dismissed and national policies were changed after the Polokwane conference in 2007 with no mandate whatsoever from the electorate?

We would also like to know how it happens that his party has some 80 members in parliament – who were not elected under the banner of their own party – but who nevertheless give their prime loyalty to that party? If he is so enthusiastic about the right of genuine representatives of the majority to govern, why doesn’t the SACP stand as a separate party in elections? Also, how does Mr Nzimande reconcile the view of SACP/COSATU that “the dictatorship of the proletariat is the only guarantee that there will be a transition from NDR to socialism.” How would the will of the majority be ascertained under a communist dictatorship – and how would the people then be able to govern?

ISSUED BY THE F W DE KLERK FOUNDATION
CAPE TOWN, 13 APRIL 2012  

About Wilhelm Weber

Pastor at the Old Latin School in the Lutherstadt Wittenberg
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