Speech by Helen Zille, Leader of the Democratic Alliance and Premier of the Western Cape, On the occasion of the Twentieth Anniversary of FW de Klerk's address to Parliament on 2 February 1990, February 2 2010
‘The Development of South Africa's Constitutional Democracy since 1990'
Former President FW de Klerk,
Distinguished guests,
Ladies and gentlemen.
I begin today with four lines from a poem called "the Great Day" by the Irish Poet, William Butler Yeats. This work is a useful prism through which to analyse the events that have followed the great day, 20 years ago, that we are here to celebrate.
Yeats writes, satirically:
HURRAH for revolution and more cannon-shot!
A beggar upon horseback lashes a beggar on foot.
Hurrah for revolution and cannon come again!
The beggars have changed places, but the lash goes on.
This poem was probably the inspiration for George Orwell's Animal Farm. Both works brilliantly capture what happens when people give their "liberators" unfettered power. In the words of Lord Acton: Absolute power corrupts absolutely.
Today I will show that our negotiated revolution - the establishment of a constitutional democracy to limit power and prevent power abuse - is threatened by what I satirically call "counter-revolutionary forces". This is one of the greatest ironies of our transition, which I will later elaborate on.
If left unchecked, these forces will destroy our constitution and with it our chances of becoming the nonracial, democratic and prosperous society envisaged in our nation's founding covenant.
But it is early days. We do not have to accept constitutional demise. We can prove the afro-pessimists wrong. This is why we must defend our constitution together.
OUR CONSTITUTIONAL REVOLUTION
Before I begin, let me say what a great honour it is be invited by former State President FW de Klerk to give this address on the twentieth anniversary of his historic address on 2nd February 1990. In a few sentences, he removed the obstacles to the negotiation of a constitutional democracy in South Africa. His courage in doing so, in that place and at that time, has rightly earned him a place in the annals of international statesmanship. He put his country before his party.
The announcement on that day of the release of Nelson Mandela and the unbanning of all proscribed organizations, including the ANC and the SACP, made world headlines. But the significance of his speech went far deeper than this.
It set out a vision of constitutionalism: universal franchise, equality before an independent judiciary, the protection of minorities, freedom of speech, religion and association, and a sound market-led economy with programmes directed at better education, health services, housing and social conditions for all.
Twenty years later, there is much to celebrate. We have held four democratic elections. We have a constitution which, on paper, is one of the finest in the world. Not only does it guarantee civil liberties and oblige the state to progressively realise socio-economic rights, it sets out the architecture of institutions designed to disperse and limit power, and prevent the concentration of power in a few hands.
It was the exceptional leadership of FW de Klerk and his counterpart in the ANC, Nelson Mandela, which averted the racial civil war that seemed to be the inevitable unfolding logic of history. And without these great leaders, a negotiated constitution would never have emerged. Both lawyers, they understood that all free and prosperous societies are based on constitutionalism and the rule of just law. They knew that replacing one form of unfettered power with another would lead to tyranny. We should be eternally grateful that they recognized and seized that historic moment.
Most people think that 27 April 1994, the day of our first democratic election, was our new democracy's defining moment. If our transition can be described as a negotiated revolution, then - at least in the popular memory - that election achieved by peaceful and democratic means for South Africa the equivalent of what the storming of the Bastille in 1789 had in France - but without the violence that took decades to transcend.
However, the real historical equivalent in South Africa took place in the small hours of 18 November 1993 when the multi-party negotiating forum ratified the interim constitution.
Not only did this historic pact make the election a year later possible, it committed all South Africans to a democratic order underpinned by the rule of law. Parliamentary sovereignty which had been abused by an all-powerful party, gave way to the supremacy of the constitution. It was at this moment that power passed from the rulers to the ruled. Our democracy was born.
WHY SOME CONSTITUTIONAL DEMOCRACIES ENDURE AND OTHERS DON'T
A democracy begins life like a fragile sapling. It requires years of nourishment and care in the right conditions to survive and flourish. It is only when its roots are strong enough to anchor it against prevailing anti-democratic winds that we can say it is entrenched.
The sad history of democracies around the world is that most fail. Their constitutions are repealed, overturned by anti-democratic forces or gradually eroded by the party in power.
A recent study of every constitution promulgated since 1789 found that the average life-span of a constitution is just 17 years. Many constitutions die in infancy: 7% of constitutions do not reach the age of two. In Africa, a full 15% of constitutions perish before their first birthday. [1][1]
So, in comparative terms, we have done relatively well. Not only have we survived the terrible twos, but our constitution - now nearly 17 years of age - looks set to survive at least some way beyond the average life expectancy.
The relative resilience of our constitution is thanks to the specific context in which it was adopted. The authors of the same study found that constitutions which emerge, as ours did, as the result of inclusive negotiations, tend to last longer. Secondly, constitutions which are specific and comprehensive, as ours is, tend to outlive those that are vague and open to contradictory interpretations. Thirdly, constitutions which can reasonably be amended, as ours can, tend to survive longer than those that are either too rigid or flexibly changeable.
This comparative research gives us cause for optimism that our constitutional democracy may yet endure. But there is an additional element which is crucial to the survival of a constitution. It requires the kind of leadership for which Presidents de Klerk and Mandela made South Africa famous. As another important recent study of constitutional longevity puts it:
"Well-designed institutions are necessary but not sufficient. The rule of law also requires leaders who can credibly commit to self-constraint, agents who can be trusted to abide by the law as well as enforce it, and reasons for most of the population, both the powerful elites and the general mass, to believe they will benefit from the existence of the rule of law."[2][2]
In other words, a constitution's survival depends not just on the circumstances of its birth, but the character of those charged with upholding it.
And this is where the current danger lies.
THE RISE OF THE JACOB-INS
At the heart of constitutionalism is the notion that no ruler or ruling party, no matter how popular, can do as they please. They are bound by the constitution and the law.
These qualities tend to be absent in liberation movements, for obvious reasons. Liberation movements operate in conditions of secrecy and hierarchy, the antithesis of key democratic values like openness and participation. Liberation is regarded purely as the seizure and control of all levers of power, not the limiting of power once it is attained.
This explains why the democratic record of liberation movements on our continent is so woeful. As the scholar Marina Ottaway warned in the early 1990s: nowhere in Africa has a liberation movement spawned a truly democratic regime.[3][3]
But, under Nelson Mandela, it seemed as if the ANC - in the spirit of South African exceptionalism - would successfully make the shift from liberation movement to political party. There was a general understanding and acceptance of the need to limit political power to avoid the mistakes of the past.
As Mandela said when our interim constitution was adopted:
"We enter into a covenant that we shall build a society in which all South Africans, both black and white, will be able to walk tall, without any fear in their hearts, assured of their inalienable right to human dignity - a rainbow nation at peace with itself and the world."
This notion of a covenant is absent in the ANC of today's discourse because the constitutionalists in the ANC are losing the internal battle for the party's soul. The group in the ascendancy believes that liberation means unfettered power to impose its will.
They are the modern-day, South African, version of the Jacobins. In a historical irony, the word Jacobins fits our circumstances perfectly, not just for political reasons, but because the name Jacobins is a word play on the name of their current leader Jacob Zuma.
Like the Jacobins of revolutionary France, the Jacob-ins' goal is to attain absolute power, an end which always justifies the means. And, like the original Jacobins, they are guided not by the constitution which guarantees each person indivisible rights, but the ‘general will' which they define arbitrarily, as they please, to achieve their goal of entrenching power.
Not surprisingly, the Jacob-ins tend to be drawn from the ANC's external armed wing, Umkhonto we Sizwe. They include power-brokers in key Cabinet Posts such as Jeff Radebe (Justice), Lindiwe Sisulu (Defence and Military Veterans) and Siphiwe Nyanda (Communication), all MK veterans. They have no shortage of young apprentices eager to learn at the feet of their political masters. Julius Malema is the obvious example.
The influence of the Jacob-ins permeates the movement. Consider, for example, the recent rise of the war veterans' associations with their violent rhetoric. We have become so inured to what Kader Asmal refers to as the militarisation of the ANC's discourse that an injunction to kill a public figure barely raises eyebrows anymore. And, when we look beyond the quaintness of a singing and dancing President, we are reminded of the absurdity of the leader of a constitutional democracy demanding his machine gun.
For the Jacob-ins, the ANC comes first and the constitution second. As Jacob Zuma has said, "The ANC is more important than even the constitution of this country." The constitution is no longer a sacred covenant that binds us all, it is a hindrance to be pushed aside when it gets in the way. As ANC Chief Whip Mathole Motshekga said recently: "Jacob Zuma has a mandate from 11 million people, so he can do what he likes", or words to that effect.
One of the most sobering realizations over the past year has been recognizing that a constitution can be effectively nullified without changing a single word of it. This happens when the institutions that are supposed to limit the power of the ruling party, merely become an extension of the dominant clique in the ruling party. When this happens, the entire purpose of constitutionalism is subverted, so that it protects the party and not the people.
There can be no better illustration of this than the neutering of the National Prosecuting Authority (NPA) at the hands of Jacob Zuma and the Jacob-ins. With 783 charges of corruption, bribery, money laundering, racketeering against Jacob Zuma - not to mention a financial advisor in jail for bribing him - the Jacob-ins realised that the constitutional principle of prosecutorial independence was the key obstacle in the way of Zuma's ascent to the Presidency. So they turned the NPA from an institution designed to limit power into an extension of their power.
First, they dissolved the NPA's investigative arm - the Scorpions - because, by Gwede Mantashe's own admission, it had successfully targeted ANC leaders. Next, the ANC fired Vusi Pikoli - the man who had originally charged Zuma and refused to withdraw the charges - as Head of the NPA. This was despite the Ginwala Commission's findings that he was fit to hold office. Then, with Pikoli out of the way, the ANC put enough pressure on the NPA's acting head, Mokotedi Mpshe, for him to drop the charges against Zuma. The coup de grace was the appointment of Menzi Simelane as Head of the NPA. This is a man who openly denigrates the constitutional principle of prosecutorial independence. With Simelane in charge, Zuma and the Jacob-ins can sleep at night knowing the NPA is in safe hands.
The subverting of the NPA's independence gives us an idea of what the Jacob-ins will do to attain and retain power. But it doesn't end there.
The judiciary - the last line of defence for the separation of powers - is periodically threatened if it doesn't toe the line. The ANC's attack on Deputy Chief Justice Dikgang Moseneke when he professed loyalty to the South African people instead of the ANC is only the most famous example.
The engineered change in composition of the Judicial Service Commission (JSC) to prevent Judge Hlophe answering charges that he had attempted to influence Constitutional Court judges in the Zuma trial, shows that the ANC will manipulate a body with a key role in upholding judicial independence. It also tells us that - if we are honest - Hlophe probably did try and influence judges for Zuma. Why else would Zuma's acolytes on the JSC have squashed the investigation?
The conclusion is inescapable: the Jacob-ins are abusing the institutions of the criminal justice system to protect their political allies, purge their opponents, entrench their power and enrich themselves.
And they are seeking to control the levers of communication. The constitution envisages the SABC as a public broadcaster, but the ANC believes it should be the party's broadcaster. The new broadcasting bill, if passed, will give the Minister of Communications - who happens to be one of the Jacob-ins - excessive power to interfere in the SABC.
The rest of the media remain independent, but by no means secure. The ANC's Polokwane resolution to make the press accountable to parliament in the form of a media tribunal may not have materialized, but other threats lurk in the form of recently enacted and proposed legislation. The amendment to the Film and Publications Act allows for pre-publication censorship of certain publications. The Protection of Information Bill which has been withdrawn - for now - criminalises the publication of "sensitive information" if it is deemed to threaten the "national interest." Meanwhile, amendments to the National Key Points Act would, if passed, impose a media blackout on the coverage of strikes, protests, demonstrations, industrial accidents and criminal attacks. Theses pieces of legislation, taken together, give the ANC government as much power to exert control over the print and broadcasting media as the apartheid government had.
The constitutionally prescribed principle of local and provincial government autonomy is also under threat. This strikes to the heart of the democratic project of the party I lead, which is why the ANC is making menacing sounds. Our project relies on winning elections in more and more places. The more elections we win, the more opportunities we have to provide an alternative to the ANC. The more we get it right, the more threatened the ANC becomes. And, the more threatened the ANC becomes; the more likely it is to take unconstitutional measures to counter-act the threat.
And this is exactly what we are seeing.
The 17th Constitutional Amendment Bill gazetted last year is designed to strip away the power of municipalities and with it the federal principles rooted in our constitution. If the Bill were to be passed in its current form, it would reduce municipalities to little more than agents of national government, regardless of the party in charge and its electoral mandate. The ANC's periodic threat to scrap or reduce the number of provinces would, if carried out, amount to the same thing at provincial level.
We need to be aware of the ANC's agenda here. The ANC will say that reducing provincial and municipal autonomy is necessary for service delivery. They will talk of the need for ‘increased co-ordination' and other such euphemisms designed to conceal their real intent. But any rational observer of our politics knows that it is not provincial and local autonomy that hamper service delivery. It is the ANC's policy of deploying cadres, often without the requisite skills, to all centres of power, itself an unconstitutional practice. This is why the only provincial and local administrations that work are not run by the ANC. In the DA we reject cadre deployment; we appoint the right people in the right places. The result, over time, is better service delivery and more opportunities for citizens.
What is rarely realized, or analysed, in the studies of the tragic phenomenon known as the "failed state" is that its root cause is cadre deployment. Cadre deployment is a lever of power abuse. It is used by the ruling clique of the ruling party to place its political allies in all positions of power and influence, inside and outside the state. The purpose is to entrench the inner circles' power and promote its enrichment. The inevitable trajectory is this: centralisation of power, cadre deployment, cronyism, corruption and the criminal state. This involves the destruction of the constitution. It means the death of the economy, as capital and skills flee for safer environments. It means increased poverty and unemployment and all the associated evils.
It also destroys the capacity of the state to deliver services. But when the people rise in revolt the ruling clique use the institutions of state, designed to protect the people, against the people. The police, the army and the so-called independent electoral commission become institutions that protect the ruling elite.
All these developments point to one thing: Our covenant so cherished by Presidents de Klerk and Mandela and every genuine patriot is in danger. The counter-revolution has begun.
Ironically, while people like Julius Malema rail against the counter-revolutionaries, they do not understand that they are the real counter-revolutionaries. They are undermining the constitution and we are protecting it. Malema and his cohorts want to take us back to a time when the party, not the constitution, reigned supreme. They want one set of laws for the powerful and another for everybody else.
Some people question me when I state that our top priority is to protect the constitution. They say it should be service delivery. Now I know that you cannot live in a constitution or eat a constitution. But unless we protect our constitution, we will enter the cycle that leads to a failed state in which fewer and fewer can improve the quality of their lives.
Unless we protect the constitution, there will not be service delivery. It is the constitution that obliges the state to progressively realize socio-economic rights like housing, education, healthcare, food, water and security. The constitution doesn't just limit power abuse, it places an obligation on the party in power to deliver to the poor. If the ANC is capable of removing impediments to its power, it is quite capable of ignoring its constitutional duty to the most marginalized South Africans.
WHAT WE MUST DO TO HALT THE COUNTER-REVOLUTION
There are some who will no doubt consider what I have said today as pessimistic. Let me say that I have never been one to revel in negativity. But I am not a Pollyanna politician either.
In a new book, Barbara Ehrenreich - who was diagnosed with breast cancer some years back - rails against what she calls the ‘positive-thinking industry' because it relies on ignoring reality to sustain itself. As she says, when you ignore reality, you stop striving to understand and alleviate what it is you are suffering from because, to do so, is a threat to your own positivity.
Wishful thinking never saved a democracy, just like it never saved a sick patient. If we are to recover and thrive, we need to diagnose and understand the threats. This requires moving out of our comfort zones and the confines of political correctness.
It has become politically correct to see civil society as the sole saviour of our constitutional democracy. The risk is that it allows people to avoid taking the personal responsibility that the constitution gives them, to hold their rulers to account in elections. A constitutional democracy is premised on the idea that people will vote against leaders who abuse their power. If voters do not do so, the power-abusing rulers have nothing to fear.
In a functioning constitutional democracy, the politicians are frightened of the people, not the other way around. In a functional constitutional democracy it is impossible for people to fear they will lose their grant or their house if they do not vote for a particular party. Because these fears still exist, we know how much work needs to be done if people are to internalize the real meaning of our constitutional revolution: that they have power and the politicians should fear them.
The key divide in South African politics is between those who want to protect our nation's founding covenant and those who want to destroy it. If we destroy the constitution, racial nationalism and growing poverty will destroy the vision that President de Klerk held up for us 20 years ago. If we protect it, we can overcome the barriers of race and class and enable people to emerge from poverty - we can build one nation, with one future.
The choice is ours.
Thank you
Issued by the Democratic Alliance, February 2 2010
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[1][1] Tom Ginsburg, Zachary Elkins and James Melton, 2008. ‘The Lifespan of Written Constitutions', paper prepared for the World Justice Forum, Vienna July 2-5, 2008.
[2][2] Margeret Levi and Brad Epperly, ‘Principled Principals in the Founding Moments of the Rule of Law', paper prepared for the World Justice Forum, July 2-5 2008.
[3][3] Marina Ottaway, 1991 ‘Liberation Movements and Transition to Democracy: the Case of the ANC', Journal of Modern African Studies, 29, 1.
