By Sello Moloto.
Our democracy has gone through a lot despite being relatively very young. It was put to a test as early as 1998 when the first democratic President Nelson Mandela was hurled to court in order to defend his decision of establishing a commission of enquiry. This was done by the rugby boss at the time, Dr Louis Luyt. The dispute was sparked by the former minister of sport, Steve Tshwete, recommending the establishment of a commission of enquiry into the affairs of South African Rugby Football Union (SARFU) regarding allegations of racism, graft and nepotism.
Dr Louis Luyt`s case opened a floodgate of litigation against the democratic state, particularly relating to socio-economic rights guaranteed in the constitution. Many civil society formations and foundations took up lapses and weaknesses in the administration to court, and in most cases the administration was found wanting.
One of the earlier cases which dominated media coverage was the legal challenge for the roll out of the anti-retroviral drugs to treat people living with HIV and Aids. Our freedom and democracy never enjoyed its honeymoon. This accounts for its present-day robustness and resilience.
The number of litigation cases heightened from 2009, to the irritation of the ruling party leaders, prompting some of the leaders to label some judges as reactionary or counter revolutionary. The ruling party leaders charged that the opposition parties and civil society organisations wanted to co-govern through courts of law without winning the elections. Parliament was also not spared from the humiliation of losing cases.
The litigation route remains the preserve of the elite in society due to the costs involved. The costs naturally exclude the poor working class. The only avenue available for the poor remains marches and protests on the streets. The organised formations of workers (unions) and the civic movement have organised many marches, demonstrations and stayaways which many feel have not achieved much.
This has led to a feeling of disgruntlement and frustrations within this section of the society. As a consequence of the apparent indifference from government, the masses feel neglected. This caused the masses to borrow some of the old methods which were used during the liberation struggle. The most potent method which was used to defeat the apartheid regime was mass action through defiance campaigns. The new phase of struggle tried to copy this method, but end up overdoing it by including violent protests leading to wanton destruction of public property.
During the liberation struggle, the community leaders were rational and reasonable. The essential service workers (emergency and health workers) were allowed to go to work. In this new phase of struggle, a new concept has been established referred to as “total shutdown”. The enforcers of total shutdown expect that nothing should move. Even essential workers are not supposed to go to work. Learners are barred from attending school even on matters which are not related to education. If there is no water or the community demands a road, kids are barred from going to school.
The most traumatic experience was the 2016 torching of about 24 schools in Vuwani due to the community`s resistance to the decision of the Municipal Demarcation Board.
Our governance system provides various mechanisms for community consultation and participation. Parliament is required to organise public participation forums and hearings in the legislative process. Government sometimes embarks on community consultation platforms such as Imbizos. The municipalities are required to convene community meetings during the development of integrated development plans (IDPs), which are meant to inform the passing of their budgets. There is also community representation in ward committees.
Both parliament and provincial legislatures have portfolio committees which are meant to hold Ministers and Members of Executive Councils (MECs) accountable. The system attaches too much emphasis on public consultation and participation but very thin on accountability mechanisms of elected members of parliament (MPs) and legislatures (MPLs) to the community. Members of the executive are only accountable through portfolio committees to MPs and MPLs.
The constitution provides for the establishment of institutions supporting our democracy such as the Public Protector and Auditor-General offices which are meant to hold the administration accountable. Notwithstanding all these mechanisms which have been put in place to enhance accountability, civil society formations and communities still feel that their concerns are not adequately taken into consideration, hence the propensity to take government to court and participation in violent protests.
In 2015 Parliament appointed a high-level panel on the assessment of key legislation and the acceleration of fundamental change led by former President Kgalema Motlanthe. The report identified the bottlenecks and recommended solutions to such deficiencies. At the core of the panel`s recommendations are the acknowledgement that the policy content of our legislation remains relevant and correct. As already pointed out by other studies, the lack of policy implementation is due to lacklustre approach to holding executive to account by parliament, as well as lack of political will on the part of executive.
Many political commentators, analysts and academics believe that a change in the electoral system may be the most appropriate mechanism to ensure accountability. This postulation has been proven inadequate by our experience with local government electoral system, which is a combination of the direct constituency based and proportional representation systems. The combination of the two electoral systems did not bring any improvement on accountability at the local government level. Communities continue to resort to violence by burning ward councillors’ houses as a way of expressing their anger and frustrations about service delivery.
Throughout the world, there is no electoral system which provides an effective accountability mechanism. Elected members of parliament are firstly accountable to their political parties before they are accountable to the public. Party bosses give instructions on how their members should vote in parliament. The electorate is at the mercy of the party bosses. The people`s or national interests only benefit when such interests coincide with party policy (interests). The government policy stability and consistency depend on the stability of the ruling party and its internal accountability mechanisms.
Parliament needs to revive its 2012 abandoned process of establishing the national law on petitions to give effect to sections 56(d) and 69(d) of the Constitution. The law should outline a proper process of petitioning Parliament. There should be a clear process of differentiating between petitions meant to object to parliamentary decisions (call for plebiscites or referendums) and popular initiatives((petitions) which require the attention of parliament, with clearly determined thresholds for signatures.
The present rules of parliament on petitions do not inspire confidence. This is the reason why civil society formation ignore this route and prefer the court option. Popular initiatives give the electorate power to serve as effective checks and balances to both government and parliament in between the elections. These measures make the elected leadership in parliament to respect the electorate.
In many nations the presence of popular initiatives in their constitutions serves as a deterrent to prevent parliament from going rogue. In cases where there is provision for popular initiatives, the decisions of Parliament are always taken with due regard for the interest of the nation.
*Moloto is an ambassador and former Premier of Limpopo. He writes in his personal capacity.
**The views expressed do not necessarily reflect the views of Independent Media or IOL.