The real cause of our constitutional crisis

By Ian Dewar

At the end of the explanatory memorandum to the fully amended Constitution on the info.gov.za website our Constitution is described thus: “This Constitution therefore represents the collective wisdom of the South African people and has been arrived at by general agreement.”

Now, nearly sixteen years since its promulgation, there is little evidence of any real transformation from this wisdom or general agreement; the land reform debacle continues unresolved; the income disparity crisis in our national economy has worsened; and the section 152 constitutional objectives for democratic and accountable government have patently not been realised.

Why is this? Surely by now we should be well on our way to manifesting the overarching Section 24 constitutional objective of securing “ecologically sustainable development and use of natural resources while promoting justifiable economic and social development“? I would put the abject failure to even begin achieving this objective down to several mutually compounding factors.

1) We have lost our national capability to reach consensus; and in losing it we have also lost the turnkey democratic mechanism upon which constitutional functionality depends. In abandoning the non-political, participative civil-society forums of the RDP, state government effectively abolished civil society’s ability – and thereby its constitutional right – to be able to participate in matters of government decision-making.

2) We have lost our trust in state government; and in losing it we have also lost our faith in the democratic due process of state law. With the retrograde to majority power politics after the abandonment of the government of national unity in 1996 it appears evident that we have returned to the arrogance, voraciousness, and bureaucratic torpitude of a centrist state hegemony. This despite the fact that we have definitive local government law for democratic participation and government accountability – which all politicians blatantly disregard.

3) With the state’s policy shift to the Growth, Employment, and Redistribution (GEAR) strategy, everything good about the rainbow nation began to fall apart. The formative contribution to transformation through civil society participation in the RDP (as the prior, legislated policy framework for integrated and coherent socio-economic progress) was unceremoniously dumped under the foolhardy belief that the ‘trickle down’ effect of orthodox economic growth would solve all our problems. How chronically wrong this decision was is only now admitted in that there is a belated attempt to bring the RDP back to life in the National Planning Commission’s 2030 vision plan.

4) And now, to cap all this, the government wants to censor highly justifiable civil society criticism of its appalling, and highly embarrassing political behavior and performance with the Protection of State Information Bill. This begs the question, how much closer to the political thuggery and despotism of the apartheid state can this government actually get? Don’t you realise that onerous state legislation such as this only further alienates the creative participation of civil society you so desperately require?

Fundamentally then, the failure to realise the constitutional hopes of the rainbow nation can be put down to one cause: the failure of politics per se to realise that the greater rights and interests of ‘The Democracy’ of this nation as a whole are now firmly elevated by our Constitution above those of any lesser political party whatsoever. Don’t get me wrong here – the right to political representation is also guaranteed in our Constitution. What is wrong is that the co-operative nature of governance required to bring all forms of representation together towards achieving consensus agreement at the local level has been left out of the gambit of current state government.

The constitutional logic here is that surely democratic government law created by political consensus at state level can only be implemented through the democratic consensus of all role players at local level? In this latter regard the purview to the Municipal Systems Act (MSA) provides absolute clarity on this pivotal constitutional issue in that it envisages local government as becoming “an efficient, frontline development agency capable of integrating the activities of all spheres of government for the overall social and economic upliftment of communities in harmony with their local natural environment”.

The detail for just how such complimentary and cooperative local government could be achieved is not in the Constitution either; it is in chapter 4 of the MSA – where section 16 legislates for “…a culture of municipal governance which complements formal representative government with a system of participatory governance …” In this respect there are only two hurdles to achieving this key transformation objective. Local civil society does not yet have the legal democratic entity or the organizational-development capacity necessary to build its own system of participation.

As far as the lack of legal entity is concerned, under the heading ‘Legal nature’, Section 2(b)(ii) of the MSA now recognises that “the community of the municipality” is a legal entity of the municipality. And as far as the lack of capacity is concerned, Section 16(1)(b)(i) states that the municipality must “contribute to building the capacity of the local community to enable it to participate in the affairs of the municipality”.

All that is missing then for the implementation of democratic and accountable local government in terms of section 152 of the Constitution is the political compliance and logistical support necessary to get it off the ground. Maybe then we, the local democracy, will be enabled to get our hopes for the rainbow nation back on track. In this regard section 2 of the Constitution has the final say: “This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”

Ian Dewar is an independent civic entrepreneur and sustainable systems researcher at the Theewaterskloof municipality in the Western Cape.