South Africa’s economy is strained, unemployment and crime are extremely high, policing is ineffective and the public service is dysfunctional. Francois Venter was involved in drafting the country’s transitional 1993 and final 1996 constitutions. Since then, he has researched comparative constitutional law and theory. He believes the outcome of the 2024 general election, which culminated in a multiparty government, provides an opportunity to address the country’s problems through applying the constitution properly.
South Africa’s constitution is highly regarded. What’s wrong with its implementation?
The 1996 constitution is the country’s greatest asset under the current socioeconomic and political conditions.
It allows for – and was intended to – promote broad cooperation in reconstructing the country.
The preamble contains various phrases expressing this intention. They include the need to
improve the quality of life of all citizens and free the potential of each person.
Chapter 3 deals with the notion of “cooperative government”. This demands, among other things, an
effective, transparent, accountable and coherent government.
Reconstruction through cooperation has, however, been undermined.
A prominent example is the way parliamentary oversight over the executive was neutralised during President Jacob Zuma’s time in office (2009-2018). As a result he didn’t have to account for state capture.
Section 89 of the transitional 1993 constitution provided for two executive deputy presidents. They would ordinarily “preside over meetings of the cabinet in turn”.
The cabinet would
function in a manner which gives consideration to the consensus-seeking spirit underlying the concept of a government of national unity as well as the need for effective government.
The Constitutional Assembly of 1996 was composed of the newly elected National Assembly and the Senate sitting together to draft and adopt the “final” constitution. The African National Congress (ANC), which held the majority in the assembly after the 1994 elections, chose to remove the notion of a government of national unity from the constitution.
Instead, the final constitution concentrated both the powers of the head of state and of government in the president.
This allowed the presidents succeeding Nelson Mandela to personally exert final control over both the executive and the legislative process. Due to this concentration of power, the country’s presidents have until now had almost unfettered control of the composition of the cabinet, where laws are initiated. The presidents have all come from the ANC.
Fortunately, many attributes of constitutionalism that were negotiated in 1993 survived in the current (1996) constitution. These include the principles governing public administration in section 195. These were intended to maintain a professional civil service. The principle of participatory democracy in sections 59, 72 and 118 is aimed at allowing public input in lawmaking.
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Some of those constructive arrangements have subsequently been ignored or undermined.
Among these are:
The requirement to maintain a high standard of professional ethics would have prevented state capture. Basing the state’s personnel management practices on ability, objectivity, fairness and broad representation should have prevented political favouritism in appointing state officials.
Legislative bodies are supposed to involve the public in legislative processes. Unfortunately, this has often been done as a box-ticking exercise, and even abused politically, as the Constitutional Court has noted.
How can the problem be remedied?
As in any workable coalition, the parties to the multiparty government will have to negotiate a solid agreement on the modalities of their cooperation. They will have to agree to be bound by the coalition pact. They must also perform their functions in accordance with all the provisions of the constitution.
To my mind an unambiguous coalition agreement rooted in the constitution is a prerequisite for a stable and reconstructive government in the coming years.
On 14 June 2024 the parties now holding most of the seats in the National Assembly (the ANC and the Democratic Alliance (DA)) signed a “Statement of Intent of the 2024 Government of National Unity”.
The statement provides a broad basis for the development of a more detailed coalition agreement. Although such a coalition pact would be difficult to enforce in law, it could, given the spread of parliamentary representation, be politically potent.
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Although the president who was elected in accordance with the Statement of Intent is still the head of state and the executive (cabinet), the prospective coalition pact should require him to exercise the functions and powers of his office subject to the approval or acquiescence of the other signatories. Furthermore, the presidency should, similar to the rest of the cabinet, also be accountable to parliament.
Such a coalition compact, however named, cannot in law negate the supreme constitution. However, it may – and should – determine how the constitution and laws are put into action. The formal agreement may, for instance, allow cabinet ministers some executive autonomy within their portfolios.
Equally, the coalition agreement should regulate the functioning of cabinet to act as a consensus-seeking body. This would allow the joint review of the agreed policies implemented by all the ministers. Where “sufficient” consensus cannot be achieved essentially between the ANC and DA, a deadlock-breaking mechanism should be created. Ideally, this should involve persons and institutions not involved in party politics.
What must a coalition government prioritise?
Governing South Africa in a spirit of national unity will be difficult. It would thus be helpful to have a clear banner under which the task may be undertaken with broad political support and the assistance of civil society.
Such a banner might be “cooperative reconstruction”. This would give expression to the wide acceptance of the need for both cooperation in and reconstruction of a country experiencing multiple crises.
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To start with, the unity government should fix the public administration, abandon ideological rigidity and promote real participatory democracy.
Public administration
A major cause of the collapse of public services has been the large-scale political favouritism in key appointments, and weak accountability. This must end.
Ideology
It is impossible to rebuild a diverse country using one-dimensional catchphrases such as “liberation”, “revolution”, “transformation”, “empowerment”, “liberal democracy” and “cultural autonomy”.
All coalition partners will have to step back from most of their favourite battle cries and slogans.
Participatory democracy
Due to a marked global decline in popular interest in conventional democracy, there is a widespread trend towards the use of “citizens’ assemblies” as instruments for effective participatory democracy.
Citizens’ assemblies are not composed through political election as in conventional democracy. They are convened for consultation from among citizens using scientifically designed objective criteria. Examples can be seen in Australia, Ireland and South Korea.
Introducing this form of participatory democracy in all spheres of government is fully achievable within the constitution. Some form of “national dialogue” as foreseen in the Statement of Intent might indeed increase interest in improved public consultation and participation in governance.
Solid foundations for change
The foundations of the South African constitution have endured three decades of severe political strain. Among these foundations is an effective electoral system. The outcome of the 2024 polls will hopefully curb arbitrary political decision-making and the decline of constitutionalism.
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To redeem the system of governance and an economy plagued by serious crises calls for a change in governance. Capable and principled policy-making and effective implementation must replace corruption. A coalition compact must be founded upon all the cooperative and reconstructive elements of the constitution.
