The power of constitutional dialogue: Bringing the voices of ordinary South Africans inside the walls of Parliament
The voices of South Africans increasingly raised in protest underscore the need to create safe spaces where the state and citizens can hear one another. Last week, the HSRC, the National Foundations Dialogue Initiative (NFDI), and the Institute for Justice and Reconciliation (IJR) convened an inclusive dialogue between civil society, the executive, the judiciary and the legislature, to explore the question, “How can all who live in South Africa be assertive in holding the three branches of the state accountable for delivering on the fundamental rights in the constitution?” By Andrea Teagle
Edwin Cameron, former Constitutional Court judge (top); HSRC CEO Crain Soudien (bottom left); Max Boqwana, Director of the National Foundatons Dialogue Inititative (centre); and Stan Henkeman, Executive Director of Institute for Jutice and Reconciliation (right), speaking at the Constitutional Dialogue in Parliament, 24 October 2019
We need a new sense of constitutionalism, one that is defended and protected by the people of South Africa, Professor Barney Pityana, the keynote speaker and a former leader of the Black Consciousness Movement, argued at a recent constitutional dialogue held in Parliament.
Representatives of the three branches of the state – the executive, the judiciary and the legislature – agreed that collaborative efforts to find ways of realising the constitution’s transformative vision required greater inclusion of the voices of ordinary citizens.
This conversation, continuing from the dialogue, comes at a critical time for South Africa. The optimism of a new, democratic era has soured into what NFDI’s Max Boqwana called “a prevailing mood of despair”. In this climate, where dialogue happens behind closed doors, Justice Edwin Cameron warned, we risk fracturing into elitism. The gulf between the citizen and the state, and between the values of the constitution and the lived reality of the majority of its people in the face of enduring poverty and inequality, threatens to break apart our carefully built democracy.
The role of citizens
The speakers, including Cameron (representing the judiciary), the deputy speaker of the National Assembly, Lechesa Tsenoli (legislature), and Acting Chief State Law Advisor Ayesha Johaar (executive) affirmed the critical role of citizens in safeguarding South Africa’s hard-won democracy and in holding the government accountable. It was citizens’ suspicion of power, Cameron said, that brought about the downfall of apartheid and, more recently, that led the court to the decision that Zuma had to pay back money misappropriated for his private home, Nkandla.
It was also the participation of civil society, and the weight of the evidence put forward, that enabled the Constitutional Court to order the state to initiate a national rollout of anti-retroviral treatment in the early 2000s – a rare instance in which the court specified the “minimum core” content of socioeconomic rights, as Prof Narnia Bohler-Muller and her colleagues write in the HSRC’s latest book in the State of the Nation series, Poverty and Inequality: Diagnosis, Prognosis and Responses.
While the Constitutional Court acts to uphold the rights of citizens, with a pro-poor leaning aligned with its transformative agenda, it is inherently reactive: it must wait for suitable cases to be brought before it. These limitations underscore the need to create complementary spaces in which the voices of marginalised and vulnerable groups, in particular, can be heard outside of courtrooms and protests.
In their research conducted for the Constitutional Justice Project, the HSRC and the University of Fort Hare found that inclusive dialogue could improve the functioning of the three branches of the state while maintaining the independence required by the separation of powers doctrine. In the absence of such channels for meaningful exchange between the three arms of the state and civil society, cases bottleneck, and discontentment spills out onto the streets.
To reconnect South Africans with the constitution – and possibly, to reimagine it – respondents, including Prof Amanda Gouws (Stellenbosch University), suggested that the constitution be taught in schools and printed and distributed among young South Africans.
Paralysed by fear
Despite the popular culture of protests, Tsenoli argued that the public had been largely unable to exercise its constitutional duties. “We are an argumentative and a noisy society ... But we’re also a society paralysed by fear ... If that were not true, we would never have had a government that successfully manipulated all state institutions for as long as it did.”
Pityana observed that “matters that could and should be resolved by dialogue, and by political engagement among all parties, end up being matters for the courts to decide. The problem is that … communities that should be working together to find solutions for their betterment and common wellbeing no longer bother to do so. The tendency is to ‘outsource’ our duties to correct and rebuild.” Yet, where citizens have demonstrated democratic spirit and self-organised to advocate for their rights, they have been met with violence and repression at the hands of the state, claimed S’bu Zikode, the founder of the shack dwellers’ movement, Abahlali baseMjondolo. “The democracy of 1994 was never for impoverished communities,” he said.
Abahlali baseMjondolo, which campaigns for housing and other rights for marginalised groups, has a long history of conflict with the state. “We have lost 18 housing activists since 2009,” Zikode said, “when [Abahlali] insisted that land and wealth must be shared amongst those who work it.”
Empowering community-driven solutions
Professor Murray Leibbrandt, the director of the Southern Africa Labour and Development Research Unit at the University of Cape Town, proffered that dialogues should focus on finding ways of empowering communities to find solutions to localised problems. Referring to the government’s new district coordination model, which aims to revolutionise service delivery, Leibbrandt argued, “There’s a wonderful opportunity for dialogues like this to … commit to helping communities tell the government how the district development model is going to work in their district.”
Constructive ideas for tackling inequality and poverty that stemmed from previous dialogues, such as the four-year Mandela Initiative, had not been followed through, he said. Linamandla Deliwe, speaker of the Western Cape Youth Parliament in 2017, noted that the Youth Parliaments, convened to tackle particular issues, had similarly fallen by the wayside. “We speak about engaging young people, yet when we engage, nothing is being done with those engagements.”
The gulf between the youth and the state was further underscored by a young panellist’s heated objection, directed at the deputy speaker, to the conviction of #FeesMustFall activist Kanya Cekeshe, and by Tsenoli’s response, which appealed to the importance of following due process.
A lack of accountability
Bishop Malusi Mpumlwana, the general secretary of the South African Council of Churches, pointed to a lack of accountability as a major hurdle to realising transformation. If vigilance and citizen participation were essential ingredients for a healthy democracy, the flip side of the same coin was lack of government accountability. “In a virtual one-party state, we have a culture where dissident voices are shut down and ostracised,” Mpumlwana argued. “Combine that with a system of patronage, then one has a cocktail of abuse and justification.”
South Africa’s proportional representation system, while simplifying the voting process, precludes citizens from influencing a party’s candidates. “In effect, the party bosses are accountable to no one but themselves,” Mpumlwana said. Lawson Naidoo, Executive Secretary of the Council for the Advancement of the South African Constitution, argued that we need a national debate on our electoral system, but cautioned that changing the system was not a silver bullet. “We have to acknowledge that Parliament has failed to do what the constitution requires it to do,” he said. “As a country, we spend too little time asking why and how this happened.”
In the spirit of working towards greater accountability, the dialogue concluded with a commitment to reconvene, to continue to engage, and – in the words of Bohler-Muller – “to resist giving up hope, even in this time of madness.”
Author: Andrea Teagle