Constitutional rule or party diktat — what’s it going to be?

Constitutional rule or party diktat — what’s it going to be?

POLITICAL theorist Hannah Arendt gifted to posterity great insights into power and a compelling phraseology.

Report on the Banality of Evil to Men in Dark Times, she had a rare ability to describe humanity’s descent into authoritarian evil. Her study of the most pervasive iniquities of the 20th century, published shortly after the Second World War, was aptly titled The Origins of Totalitarianism.

The second half of 20th-century SA under the National Party contained some of these elements — from the police state to racial oppression complete with a denial of basic civil liberties. SA in the 21st century hardly — and happily does not — fits this mould. Warts and all, and with its imperfections and with raucous dissent, we are a democracy in the making. But there is one concept from Arendt’s study of totalitarianism that somewhat approximates one of the crowning paradoxes of the state in which SA finds itself right now.

Drilling into the malignancy of Joseph Stalin’s Soviet Union, Arendt noted the “absurdity” of that country’s fine constitution and the grim realities of life and suffering under its tyrant’s heel. This led her to a striking observation on the totalitarian regime: the coexistence of, and the conflict between, the state and the party. She described this difference between ostensible and real power as “dual authority”.

Business Day columnist Gareth van Onselen has launched a riveting book on “the ambiguities of being a South African”, titled Holy Cows. (Disclosure: Van Onselen once worked as my parliamentary chief of staff.) In one chapter, he provides a window into the brave new world, and some gaping oddities, of SA in the early glow of Nelson Mandela’s presidency.

It was a time, he writes, “when light and shadow fought for dominance most forcefully. It was, for some considerable period, uncertain who would win. There were days when the shadows would creep substantially across the landscape…. Other times, the sun would shine brightly, and hope was fairly incandescent.”

SA today is less ambivalent: we are amid a full-blown “winter of discontent” displaying far greater equivocations and less sunny leadership than 20 years ago. Lower growth, higher unemployment, more fractured politics, greater policy confusion and far less universal admiration than we enjoyed in 1995 are the secular stations of our cross. Today, we project far more shadow than light.

One of the possible reasons for our descent can be traced to a version of Arendt’s “dual authority”, at play right now in SA. Its existence under the framework of a constitutional democracy means the final word on whether the party or the other instruments of state prevail is less predictable than under totalitarianism. But there can be no doubt that we have reached a fork in the road between the limits imposed by our constitution and the expansive needs of the African National Congress (ANC).

Perhaps, for a while yet, we will continue following the advice of the US baseball player Yogi Berra, who memorably said, “When you come to a fork in the road, take it.” But such ambivalence comes with high costs, reflected in such indicators as our tanking currency.

No single phrase better captures the local version of “dual authority” than the newish slogan of government grandees: “the second, more radical phase of the national democratic revolution”. In ANC speeches these days, it has almost the orthodoxy of newfound religion.

But there is in fact something rather antique about it all. Back in the heady days of the Convention for a Democratic SA (Codesa), constitutional sceptics who doubted whether a revolutionary, largely socialist, movement like the ANC had genuinely converted itself to the restrictions imposed on its political appetites by the new constitution and the rigours of the market economy were dismissed as spoilsports.

Warnings that the constitution was just the first (democratic) phase of a two-stage operation, the second of which would be a socialist takeover, were brushed aside by the chorus of the feel-good brigade understandably anxious to bring the constitutional talks to an end.

The irascible, now deceased, former editor of Business Day, Ken Owen, inquired at the time on the relationship between the ANC and its ally, the South African Communist Party (SACP). He asked: “Who is the rider and who is the horse?” When he suggested the SACP was in fact in the saddle, he was dismissed by many wiseacres as an unreconstructed Cold War warrior.

At the time, I held an aptly ambivalent view. On the one hand, I was sceptical about whether the ANC had indeed converted to full-blown constitutionalism and had not just parked its revolutionary ambitions temporarily. On the other hand, I was present in a small room off the convention floor where the draft Bill of Rights was hammered out and the ANC and SACP representatives, Penuell Maduna and Halton Cheadle respectively, made a large concession on the issue of property rights, which was finally embedded in section 25 of the Constitution. Sceptics were less impressed than I was at this apparent compromise. They warned that the ANC would simply use the Constitution as an instrument to achieve power and, once secure in office, would begin to unravel the fabric woven at Codesa.

In 2012, senior minister and ANC policy chief Jeff Radebe, introducing the “radical second phase”, said changes in the “balance of forces” globally and locally enabled the ANC to dispense with “some of the constitutional compromises on which the ‘first transition’ (ie the Constitution) was based”. You do not need a degree in Kremlinology to know what this means. The 2015 Expropriation Bill and the new draft restrictions on farmland usage or even the ban on foreign ownership of farms provide clues.

In a speech last month, SACP general secretary Blade Nzimande declared that the “second phase” means open season on the proprietors of this newspaper, which he wrongly identified as “mining monopoly capital”. Also in his sights was Naspers, which despite making most of its money in communist China these days, he described as an “old-order Broederbond group”. Which is about as relevant as laying the sins of Stalinism at the door of the SACP.

In the same speech, he also promised to continue “the struggle to transform the judiciary”, whatever that means and wherever it might lead. Presumably to more pliant and executive-friendly judges.

The saga involving Sudanese President Omar al-Bashir showed that, when in a tight spot, the government will simply shove aside the doctrine of the separation of powers that is the beating heart of any respectable constitutional order.

So Arendt’s dual authority is now on full display. And the new divide in SA is between those who want to live under a constitutional system of government and those who prefer the party diktat to prevail.

It is time, perhaps, to choose a side.

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