Sensible compromise or "fatal concessions"?

Ngoako Ramatlhodi, the Deputy Minister of Correctional Services, is a loyal cadre of the national democratic revolution and a former Premier of Limpopo, redeployed after a tender scandal. The NDR is the life blood of the tri-partite alliance which governs all provinces except the Western Cape, all cities except Cape Town and most towns in South Africa. The NDR is what some struggled for and, for some, the struggle still continues, despite calls for the scrapping of the NDR by Prof Kader Asmal shortly before his death.

Advocate Ramathlhodi has recently complained that the ANC made what he calls "fatal concessions" in the process that led to the abolition of apartheid and parliamentary sovereignty and the establishment of our multi party constitutional democracy under the rule of law in the early 1990s (see here). It is not clear whether the fatality refers to the NDR, in which event he is right, or the country, in which event he is dead wrong.

These "concessions", so he says, tilt the Constitution in favour of "forces against change", "while immigrating substantial power away from the legislature and the executive and vesting it in the judiciary, Chapter 9 institutions and civil society movements." Without once mentioning the main goal of the NDR, which is the control of all levers of power in a hegemonic fashion in a one party state, the advocate reveals a worrisome attitude toward constitutionalism in general and the checks and balances on the exercise of power that it entails in particular.

His views are informed by the deeply unconstitutional tenets of the NDR and they are subversive of the rule of law which brought respect for human dignity, the promotion of the achievement of equality and the enjoyment of the freedoms guaranteed to all onto the statute book.

Deeper than the usual "corruption, cadre deployment and capacity constraints" analysis is the sad truth that the current paralysis in our politics is due to the presence of two conflicting value systems in the body politic of the land. On the one hand there is the humane and compassionate ethos of our new constitutional order, brought about as the product of the national accord negotiated over a period of years and culminating in the adoption of a supreme Constitution under the rule of law in 1996. On the other hand there is the value system of the NDR

Most of the aims of the NDR are seriously incompatible with the values and principles of the Constitution. The NDR demands loyalty to the party (or movement) above all else while the Constitution strives for unity in diversity with state and party separate. The hegemonic party based control of all the levers of power in society in inconsistent with the doctrine of the separation of powers and the checks and balances on the exercise of power built into our new multi-party democracy.

The NDR wants a tame judiciary loyal to the party, while the Constitution demands impartiality and independence from all of our judges. Access to information is guaranteed in the Bill of Rights, the Secrecy Bill is the brainchild of NDR strategists who will use it for nefarious purposes as soon as it is made law. Likewise, freedom of expression, the lifeblood of the media, is under threat from the Polokwane resolution concerning the setting up of a media appeals tribunal.

The Constitution envisages a public administration that is professional, ethical, and unbiased; the NDR has debased this with a system of cadre deployment that is illegal. Founding values of openness, accountability and responsiveness are lost in a maze of cronyism that is opaque, closed and lacking in accountability. The responsiveness that is present is to the governing elite's lust for power and its trappings, not the needs of ordinary people.

Unlike Ramatlhodi, our President says the policies of the Executive are supreme, but the Constitution requires that they be consistent with it, on pain of being struck down as invalid. The NDR values the tyranny of the majority; the checks and balances on the exercise of power set up in the law are regarded by its adherents as an irritant.

The Public Protector's recent experiences illustrate this. The Constitution entrenches respect for property rights while the NDR dreams of nationalization and expropriation without compensation. The procurement system of the Constitution envisages a fair, equitable, transparent, competitive and cost-effective method of spending public money. The Celes, Malemas and others have a more revolutionary method for procuring goods and services with the public's funds.

At bedrock, adherence to the rule of law is subsumed by the rule of the party bosses; Parliament, instead of exercising oversight over the Executive, has become its rubber stamp. The decision making happens in Luthuli House, not the Union Buildings. The goals of a non-sexist, non-racial democracy in which the Bill of Rights is respected and protected have been supplanted by the hegemonic tenets of the NDR.

Until these matters are addressed openly and honestly in the discourse of the nation, the paralysis will continue and Ramatlhodi will still blame the agreed constitutional dispensation for the shortcomings of the revolutionary agenda. The clash between constitutional prescripts and the revolutionary agenda causes service delivery chaos. This is because square revolutionary pegs are being pushed into round constitutional holes, poor people will continue to go to public hospitals to die. Children will attend public schools to be disappointed.

Work-seekers will enter the job market to find that there are no jobs for them and generally a climate ripe for revolutionary change of a kind not contemplated by the NDR will be created. We will never get to a greater understanding of who we are and what we are grappling with if the dichotomy between the two value systems is not confronted first. Ramatlhodi's contribution to the public discourse alternately ignores and fudges the real issues.

If the executive and legislature engage in the drafting and development of policies that are constitutionally compliant and laws that pass muster, it will not be necessary for the opposition and civil society to litigate issues. If Ramatlhodi's aim is to transform the judiciary into a tool of the NDR instead of being an impartial and independent institution which upholds the "fatal concessions" riddled Constitution he so dreads, he should come out and say so explicitly. Instead the Judicial Service Commission is a site of cadre deployment which takes unspeakably irregular decisions which then have to be challenged.

It is politically dishonest and unacceptable to pursue the NDR by stealth; a referendum among the people of South Africa would demonstrate that the requisite majority would much prefer the constitutional protections afforded them by a vibrant civil society movement, by the Chapter Nine Institutions and ultimately by the Courts. Having regard to the collapse of the soviet bloc due to the impracticality of communism, it is unthinkable that the majority of South Africans would prefer to live in a one party state without constitutionalism and the safe haven of the rule of law.

This is why a referendum asking the question: "Would you prefer to replace our Constitution with a one party state in which the one and only party has hegemonic control of all of the levers of power?" will never be held. Zambians tried a one party state and have emphatically turned their backs on it, as have the people of Malawi, Lesotho and Mozambique among many others in Africa.

Paul Hoffman SC is Director of the Institute for Accountability in Southern Africa. This article first appeared in The Times.

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