Is the ANC loyal to the constitution?

Jack Bloom asks whether the ruling party truly respects constraints on its power

The day after Barack Obama won the US presidential election, a man who had covered his building with "Veterans for McCain" signs put up another sign.

It read: "The nation has voted. Not my choice but now My President.

Kenneth Blackwell, a Republican-supporting commentator, wrote "Republicans will honor President Obama's office ...The nation has one president at a time, and it's his time to lead."

Such sentiments are necessary in a democracy where losing parties accept the verdict of the electorate and respect the institutions of power for the good of the country.

It does not mean, however, that political parties give up their core principles just because they are in opposition rather than in government.

The concept of a loyal opposition means that non-governing parties can oppose government policies while maintaining loyalty to the source of the government's power.

It is their duty to continue to promote their alternatives so that the electorate has a choice at the next election if they are unhappy with the government's record in office.

But in South Africa, the ruling party has always been quite hostile to the robust questioning and debate that is found in the established democracies.

Opposition is often projected as somehow unpatriotic or not in the national interest.

This is despite the constitutional position that guarantees freedom of assembly and of speech.

In this country, ironically it is the government's loyalty to the constitution that is more to be questioned than that of the political opposition.

Its policy of cadre deployment undermines the independence of institutions like the National Prosecuting Authority (NPA) and the Public Protector.

Justice Minister Jeff Radebe's appointment of Advocate Mokotedi Mpshe as an Acting Judge is a violation of the separation of powers in view of his position with the NPA.

It also looks suspiciously like a pay-off for dropping the corruption case against Jacob Zuma.

The civil service in general is supposed to be impartial and appointed on the basis of competence, but this has been undermined by political appointments.

Judges are appointed by the Judicial Service Commission, but government's recent appointees to this body have been less obviously impartial than in the past.

It is absolutely imperative that our judiciary is independent, else we are on the slippery slope that we have seen in Zimbabwe where many judges do Mugabe's bidding.

Judges do not have an army, so what if government simply refuses to obey a court order, as has happened in Zimbabwe?

This frightening prospect is more likely when we have leaders like Jacob Zuma who has said that the ANC is more important than the constitution.

A key test is whether the ANC will move to strip opposition-controlled provincial and local governments of their constitutionally entrenched powers.

Another danger is the plan for a single public service, which will further entrench ANC centralised control.

The tragedy in Africa is that liberation movements have seen their legitimacy as deriving from the "will of the people" rather than subject to the limits of a constitution.

Fortunately, the more recent trend has been towards multi-partyism and peaceful transfers of power such as in Ghana.

This can only be sustained when there is both a loyal opposition and a loyal government that respect a democratic constitution.

Jack Bloom is a Democratic Alliance member of the Gauteng legislature. This article first appeared in The Citizen.

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