In a spirit of mounting concern we are currently taking stock of the state of our constitution that is just more than a quarter of century old. More specifically, there is a sense of anxiety about what is often fondly described as “our democracy" – the invaluable gift of a supreme Constitution.
Yet, when our democracy is realistically assessed a dreadful picture unfolds. Our democracy has become a bribeocracy, that is, a system in which millions of state-dependent indigent people are bought — bribed — with grants from the now shrinking fiscus to keep the same thievish regime in office election after election.
Accordingly, several commentators describe the present dispensation as a kleptocracy — a dispensation in which the permanent regime can simply not refrain from stealing.
Just recently, new insight into this phenomenon was gained in a report of the Government and Public Policy (GAPP) supervised by Dr. Ivor Chipkin, in which the conclusion is reached that it has over the years become the standing modus vivendi for the ANC to keep itself going with the support emanating from the state’s money coffers
Moreover, South Africa's democracy also entails a regime of the worst – something the Greeks of old called a kakistocracy, a pointed description with, by the way, a particular appeal to the Afrikaans ear. And in South Africa, matters that should be resolved through democratic and various juridical processes are often and seemingly increasingly settled through violent means – with impunity. Wits sociologist, Prof Karl von Holdt rightly describes our democracy as a violent democracy.
These descriptions of our democracy are far from mere verbose dramatization. On the contrary, they reveal that our Constitution has not honoured its democratic promises, because from whatever angle our democracy is considered, one can rest assured that it will time and again reveal a new and nasty side of itself.
The most striking characteristic of South African democracy, however, is that it entails a one-party dominated order under the specious guise of democracy.
According to the phraseology of the Constitution, our democracy should never have degenerated into a one-party dominated order. At least three constitutional provisions are relevant.
First, the "heavily entrenched" section 1, amendable only with the support of a three-quarters of the national legislature, proclaims that as a constitutional value, the Republic of South Africa is one, sovereign, democratic state founded on, among other things, the values of a multi-party system of democratic government to ensure accountability, responsiveness and openness.
Second, there is the equally heavily entrenched constitutional value of non-racialism.
Third, there is accountability - also a value that the Constitution professes in section 1. Particularly relevant in the present context is that Parliament, more specifically the National Assembly, must hold the executive – the president and his cabinet – and the state administration accountable. This is a standard obligation of legislatures, in present-day South Africa articulated in section 55(2) of the Constitution.
The firm belief was that these constitutional provisions would guarantee multi-party democracy.
The belief was that these provisions would specifically take care of two things.
First, it was believed that the electorate like that of a genuine democracy would act rationally. Consequently, a mal-performing ruling party, especially a deeply corrupt one which plunders on a large scale, would be vanquished in the next general election and replaced with a new government as would be the case in a true multi-party democracy.
Second, trust was placed in parliamentary oversight over government, thus ensuring that government would also be kept on the narrow road in the periods between general elections. Therefore, if the ruling party in the executive would steal and plunder, parliament would expose and act against the culprits through debates, questions, proceedings in committees and with motions of no confidence. Delinquents would lose their jobs, malfunctioning would be revealed and prevented in the future.
Yet, none of the two occurred. In spite of the ANC’s unparalleled plundering, multi-party democracy failed wholesale and repeatedly with the ANC winning consecutive elections with large margins. Parliament also fails spectacularly to call to order the ANC in the executive. The contrary happens. Parliament protects and supports the executive.
What happened eventually on close analysis was that the constitutional provisions on multiparty democracy were perceived to be a romantic fairy tale, which enthralled many political commentator and constitution experts. Yet, it was not true. It was swept aside and rendered powerless by the inexorable logic of one-party domination.
There were no grounds for believing the fairy tale because already at the onset of the constitutional transition in the mid-1990s, people who knew better warned that the constitutional guarantees mentioned above were not to be trusted. Italian-American political scientist, Professor Giovanni Sartori, highlighted the then new order's undemocratic temperament.
Professors Hermann Giliomee, Peter Vale and several others also explained that the new order was destined to be a defective one-party dispensation owing to the ANC's predictable electoral dominance, thus not worthy to be regarded as a full-fledged democracy.
In the glow of the then exuberance over the miracle that the new Constitution was portrayed to be, this insight was unthoughtfully brushed aside. Incompetent commentators made Sartori off as a rara avis. The constitutional fairy tale holding forth that everything was in place for safeguarding true democracy was fanned as gospel.
Since then this gospel has been shattered and the former fairy tale gave way to deep misgivings about the inherently ailing condition of democracy in South Africa. The arguments put forward at the time that the country was destined for one-party domination were so valid that, in retrospect, it amounted to a reliable future description of what had actually happened in the meantime.
The argument at the time was that the first election of 1994 was not truly an election and that future elections would neither be. The elections were rather racial censuses, due to the fact that people voted according to their identity - more specifically their ethnic, cultural and then of course their racial identity.
Because of the reliance on constitutional non-racialism and the associated belief in the so-called Rainbow Nation, the identity factor has been totally underestimated. According to the creed of non-racialism, it was believed that people would, according to individual judgment, cast a rational vote and more specifically that they would also vote according to individual value judgments. Former President FW de Klerk, for example, believed that his party would soon be back in office.
However, non-racialism was short-lived if not stillborn. Election results were in each case largely predictable in accordance with group identity, thus tearing the heart out of electoral democracy, because the result of a democratic election is essentially required to be unpredictable - in the balance.
Unpredictability ensures accountability: in the ruling party because it knows it runs the risk of losing power if it does not act fairly and effectively; and in the opposition they know that if they perform well, the electorate will most likely reward them with victory and governmental power.
Little of this has been forthcoming, however. The ANC has been dominant for more than a quarter of a century and at present without any significant expectation of an election defeat. Recent results in municipal by-elections confirm this. The flicker of unpredictable election politics combined with the ANC's losses in the 2016 municipal elections when it lost three metropolises to the opposition by very small majorities is history. Today, five years later, the ANC's dominant position has been restored.
Identity as a political factor also shows no sign of weakening. On the contrary, it has become more pronounced. The Freedom Front's growth at the expense of the DA and the DA’s losses of support on all fronts, (Afrikaners and black voters by name) apparently due to its reembrace of simplistic liberalism are indicative of this.
Even more significant is that South Africa has sharply re-racialised - something that Ferial Haffajee elucidated a few years ago in her analysis in What if there were no whites in South Africa? Haffajee explains that a new black elite has emerged who is rejecting the constitutional dream of non-racialism and is embarking upon a kind of “racial war”.
In party politics, vicious racial politics are most clearly expressed in the extremism of the EFF, and even more significantly, in the renewed re-racialisation of the ANC. This is, according to RW Johnson in keeping with that of the ANC's ideological counterparts elsewhere in Africa. The racialisation and accompanying hostility towards whites, is in part an attempt to hide responsibility for large-scale government failures under rumbustious racial nationalism.
The effect of the intensified racialisation of election politics and results is that the long-standing phenomenon of elections as racial censuses is gaining further impetus. The bottom line is that South Africa's democracy in fact entails lasting racial censuses instead of real democracy and that ANC domination (in the course of time possibly supported by little brother, EFF), rather than actual multi-party democracy, is here to stay.
Parliamentary oversight - accountability
One-party domination, propelled by the factor of racial identity, has destroyed the democratic process of parliamentary oversight of the executive in the same way as it has thwarted multi-party democracy in the field of party electoral contestation.
Regardless of the upbeat provisions of section 55(2) on how the National Assembly has to oversee the executive and the executive has to be accountable, it – the national executive – simply cannot fulfil this responsibility effectively.
The (ANC-majority of the) National Assembly is loath to take action against especially senior functionaries in the executive. In truth it is an accomplice in, rather than a counterbalance to, corruption and state decay - a factor that erodes instead of safeguards democracy.
This facet of failure of democracy in South Africa also stems from one-party domination. It's simple. Cabinet members are senior and leading figures in the ANC. The National Assembly, which has to discharge its oversight responsibility over the executive, consists largely of members of one and the same ruling ANC who are in charge of the executive - the president, being the leader of the ANC and ministers from the senior ranks of the ANC.
The majority of members of the National Assembly are (junior) members of the very same ANC. Their political careers are dependent on the ANC leadership, including the president and members of the cabinet.
It is therefore patently naive to believe that ANC members of the National Assembly will put their political careers at risk by undermining their own party's leadership. Moreover, the ANC practices so-called "democratic centralism," which is embodied in strict party discipline in the caucus and in party structures.
In fact, ANC office bearers always boast that they are loyal party members. They do not break ranks. Of course, ordinary MPs are not going to make themselves vulnerable by challenging party discipline. Moreover, they have no other alternative in party politics, simply because the small opposition parties cannot dish out the posts and guarantee the privileges that the ANC can.
Even during the period of open state looting in the last years of Jacob Zuma's presidency, when a huge pile of evidence was already available against Zuma and his henchmen, the parliamentary ANC allowed Zuma and his cronies to continue looting. A few weeks ago, Speaker Thandi Modise confessed to the Zondo Commission how parliament had failed in its constitutional oversight task. But while Modise was confessing, the ANC members in the portfolio committee for mineral resources and energy were blocking an investigating into allegations of large-scale corruption with the awarding of contracts for the emergency generation of electricity. Thus the ANC continue treading their notorious bad old ways.
Even Zuma's "opponents" with Cyril Ramaphosa at the forefront, have tolerated Zuma for years. Moreover, they were complicit in Zuma's spree of destruction by relentlessly contributing to the accelerated degeneration of the country through the ANC's policy of cadre deployment. Ramaphosa has only one defence why the ANC did not act against Zuma – the standard Ramaphosa excuse of posing as the permanent ignoramus. He did not know.
Ramaphosa's assumption of the leadership of the ANC did not bring about any significant turnaround. The ANC is still the dominant party. One-party domination, which prevents parliament from duly exercising its oversight responsibility over the executive, is still intact. Despite the best efforts of opposition parties, little can still be expected from the parliamentary oversight role.
The ANC in the legislature and the executive will continue to close ranks as before. They have no choice because they have to stay in power and their corruption is so ingrained that they simply cannot dare to act consistently against it. And moreover, the ANC MPs are still in a subordinate position to their party leadership in the executive and consequently still not in the position to call them to task.
Under Ramaphosa, there are loud announcements about a new era in which corruption will not be tolerated, as loud as the announcements about super-fast trains and astonishing smart cities. After all, the ANC has always been the movement of the great announcement followed by the great doing nothing.
There is no major cleaning-up yet. Therefore, several questionable figures still populate the ANC side in the National Assembly and as questionable cadres are still deployed in the civil service and other organs of state, often in leading capacities. Therefore, the looting continues largely without sanction and therefore the state is increasingly insolvent and its services increasingly weaker. In the final analysis the kind of broken parliamentary oversight conditioned by the one-party domination of the corrupt ANC is a lasting feature of our broken democracy.
Under a plundering regime
Quite gullibly some might say that the ANC is at least now starting to purify itself. Look, even some persons as high up in the ANC as Secretary-General Ace Magashule, now seems to have been taken to task. However, this is not a correct assessment of what is playing out in the iniquitous den of the ANC. Action against comrade Ace has much more to do with factionalism in the ANC than anything else. It is more about the Cyril-ites settling scores with the Ace / Zuma faction than it is about a real commitment to cleaning up government.
Looting, personal and crony favouritism, is not a characteristic of and restricted to any particular faction of the ANC. It is a salient feature of the ANC as such. Its policies - affirmative action, black economic empowerment, transformationism, etc. - are borrowed from the lexicon of seemingly legitimate politics used as stratagems by which the ANC exercises its dubious bribocracy in terms of which supporters are afforded benefits to ensure their continued support and the ANC government in power.
It is clear that the democracy of the South African state - of our democracy - is a moribund democracy of one-party domination. This ailing democracy superseded the splendid constitutional phrases of multi-party system of democratic government, non-raciacialism, parliamentary oversight of the executive and largely rendered all ideals embodied in these constitutional phrases invalid and powerless. Hence this indisposed democracy is clearly not the kind of democracy that deserves to be nurtured as "our democracy".
The ANC's thievish one-party-dominant regime has gone a long way in destroying the South African state. However, the state over which the regime is ruling is a shrinking, increasingly insolvent and weakening state. The money and the state apparatus - police, army, civil service - that must ensure the regime's control are inexorably withering. The result is anarchy, and a choice between one of two concomitant things. The one is impoverishment and chaos. The other is the assumption by communities of the responsibility of increased self-rule thus filling the void and dispelling the chaos left by the dominant but failing regime. This may be the basis of new forms of democracy that could be worthy of our respect.
Koos Malan is a professor of public law at the University of Pretoria. He authored amongst others, There is no supreme constitution – a critiques of statist-individualist constitutionalism and Politocracy – An assessment of the coercive logic of the territorial state and ideas around a response to it.