In 1997, a decade before he became a global media star on CNN, Fareed Zakaria wrote an influential article for the journal, Foreign Affairs.
Titled, The Rise of Illiberal Democracy, Zakaria’s article commenced with an observation from the hard-driving US diplomat, the late Richard Holbooke, who brokered a peace deal in war-torn, ethnically inflamed Bosnia. He asked of the elections there in 1996: “Suppose the election was declared free and fair, and those elected are racists, fascists, separatists, who are publicly opposed to peace and reintegration. That is the dilemma.”
In 2000, I met Holbrooke a few years after the article was published when he was US ambassador to the UN. He set great store then by SA’s voice and counsel in foreign affairs. Our height in the world was the beneficent combination of the end of apartheid and the rise of democracy here; today we are reduced to being a cheerleader for the world’s polecat, Vladimir Putin, suggesting that it doesn’t take much time to fall from a great height.
Zakaria answered the Holbrooke dilemma by reminding readers, more than 25 years ago, that there was an essential distinction between “democracy” and “liberal democracy”, hence the headline on its opposite, the illiberal variant.
Free and fair elections are the marker of democracies but are not the sufficient and necessary cause of stamping the system as “constitutionally liberal”, he wrote. To achieve that status “a bundle of freedoms” need to be present. This parcel of public goods includes the rule of law, a separation of powers and protection of basic liberties.
In other words, simply having a free election (often not possible in illiberal democracies), is only one public virtue. Or as another intellectual maven, Samuel Huntington, observed basic democracy needs to be distinguished from other public virtues and vices and is at best a minimalist definition. Having an election is about the process of selecting a government. It tells you very little about the overall health and standing of the democracy itself.
That health check — Zakaria wrote — comes in the form of “constitutional liberalism” which references how governments and societies operate. To secure the rights of life, property and “the bundles of freedoms” requires careful attention to “the checks on each branch of government, equality under law, impartial courts and tribunals and separation of church and state”.
In 1996, a year before the article was published, SA finalised its new constitution. It was studded with chapters and clauses which not only stamped it democratic but ensured, theoretically, that it met all the criteria of constitutional liberalism: there were freedoms aplenty in its bill of rights, ranging from protection of property rights, carefully balanced with the need for redress from dispossession; there were all the traditional emphases on freedoms of speech, assembly, religion, information, privacy et al. And the entire bundle of rights was protected by independent courts empowered to strike down any statute or law repugnant to these rights.
The constitution went beyond traditional rights and added in a wealth of new protections for citizens, ranging from entitlements to housing, health care, education, language and culture.
On the issue of checks and balances the document was expansive. A two-chamber parliament, providing special representation for the nine provinces, would be constituted. And the National Assembly was specifically charged with ensuring “that all executive organs of state are … accountable to it” and the same body was mandated to “maintain oversight of national executive authority”. And just in case such a check and balance was insufficient, cabinet ministers were explicitly prohibited from conduct which was “inconsistent in any way of their office or expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests”.
Such granular detail appears throughout the 230 or so clauses of a document which most in the governing party, from the president down, continue to proclaim as one of the most progressive and impressive documents of its kind in the world.
We can but wonder if any document in the world has, equally, in two and half decades highlighted such a yawning chasm between nice theory and grim practice.
Last week two events here, and several abroad, shone a new light on the promises in our fine constitution and the reanimation of illiberal democracy at home and in the world.
Back in our makeshift parliament, which 15 months after a huge fire — caused by official negligence, gutted the parliamentary chamber which remains unusable and unbuilt — the new deputy president debuted with his first question time.
“Is Paul Mashatile a constitutional democrat?” was not a question directly posed to him by MPs. But in his answers, he revealed the reply is “No”.
Mashatile told MPs last week that “democracy means majority rule”, advising opposition chief whip, Siviwe Gwarube: “I think that is how democracy works, the majority must have its way. When the ANC believes its course is correct it will use its majority to push its decisions. If you lose there [in the elections] you have already lost here [in parliament],” he told her according to the report in Daily Maverick.
Gwarube, hopelessly naive on his account, had studied the constitution and demanded that the ANC not steamroll accountability (or the lack of it) by stiff-arming any parliamentary inquiry into the president’s Phala Phala affairs. Just as later the same day, as Mashatile greenlighted the majority steamroller to flatten all before it, parliament voted down a proposal to probe allegations of criminality and huge corruption at Eskom.
If the majority so decides, that is the end of it, according to the new deputy president and heir apparent. Too bad about those 230 constitutional clauses which determine other checks and balances on untrammelled majoritarianism. Or the 490 MPs paid well to police the executive. On his version, any minority here — be it taxpayers who fund all government expenditure, gays, environmentalists or any other group who can’t muster a numerical majority in parliament on any issue, the deputy president says “tough luck”.
This set me thinking that those of us who survived the rigours of late nights and endless meetings between 1991 and 1996, hammering out the detail and delicate compromises embedded in our constitution, had largely wasted our time and efforts. All that was needed, on the Mashatile view of democracy was a bare-boned electoral manual and not a carefully crafted constitutional roadmap. And persuading a fearful minority in 1994 to surrender power on the promise of future protection under a constitutional order was simply a bluff, to be discarded later.
Mashatile was channelling his inner Jacob Zuma who banged the same illiberal drum back in 2012, telling the opposition: “We have more rights here because we are the majority.”
Still the illiberal democracy, to which the new deputy president gave voice, is not quite as extreme (yet) as some of the views held by a new cabinet minister.
For the vanishingly small army of constitutionalists still in the upper reaches of the ANC there was an audible sigh of relief when the histrionic Lindiwe Sisulu was recently ejected from the cabinet.
Apart from branding Ramaphosa a liar, her grave sin in the eyes of constitutionalists was her attack on the constitution, which she branded as being “neoliberal with foreign inspiration” together with her delicate description of some constitutional judges as “mentally colonised Africans”.
Yet, in less insulting terms, but with the same point of attack, Sihle Zikalala, the new minister of public works and infrastructure last year, ironically on Human Rights Day, told an audience in KwaZulu-Natal to move away from constitutional democracy entirely. Speaking as the then provincial premier, he advised that the Constitutional Court was the roadblock to radical transformation: “It is incorrect that when we want to transform our province and country we are stopped by another arm of state. When we want to implement BBBBEE, preferential procurement and radical transformation we are stopped by the courts.”
The courts which operate under the same constitution and restraints to which he swore allegiance at his ministerial installation this month.
Last week outside SA, Israel was roiled by unprecedented mass demonstrations and protests when its ultra-right government pressed ahead with a raft of bills designed to remove the testing rights of courts over parliamentary legislation and to change the appointment mechanism of judges to allow a government majority, essentially, to select its own judges. To a majority in that country this represents the gutting of essential checks and balances. The Israeli crisis is different from our own in two essential respects.
First, the country, unlike ours, does not have a written constitution. Second, the wave of mass dissent against this move, despite the new government having majority support in its election, has stalled the new laws as prime minister Bibi Netanyahu has paused their passage, for the time being at least. But it is searing to see the government of a country -often depicted as the lone democracy (for its citizens at least) in an undemocratic region, embrace the tenets of illiberal democracy.
Across in India, which enjoys the title of the “world’s largest democracy” the ultranationalist BJP government used the flimsiest legal pretext to expel from parliament its leading opponent, Rahul Gandhi of Congress. He is the fourth-generation heir of the dynasty of Nehrus and Gandhis who have dominated politics there since independence. As one commentator noted, “this is politics with the gloves off, and it bodes ill for our democracy”.
How many South Africans would be roused from the daily troubles when the full-frontal assault on our liberties gathers pace and the constitutional order is attacked frontally, just as it has been undermined from within by so many leading lights in government today? Perhaps the careful and determined application of cadre deployment — in everything from judicial appointments to appointing quiescent hacks who allow parliamentary committees to be stifled, makes a full body assault unnecessary.
Or are all the other crises we confront, and the daily grind to survive, so anaesthetising us that we are past caring?
Tony Leon, a former leader of the opposition, now chairs Resolve Communications. @TonyLeonSA
