Threats to Democracy: Perspectives and Lessons for NADEL: Address by COSATU General Secretary, Zwelinzima Vavi, Mthatha, February 25 2012

I am honoured to be called upon to address this gathering on behalf of COSATU on the subject of "Threats to Democracy: perspectives and lessons for NADEL". This comes about within a context where various legal and constitutional debates are currently underway, and which, depending on which side of the debate you sit, does OR does not, constitute a serious threat to our constitutional democracy.

The complexity of identifying relevant threats to democracy is only possible if we first determine what we commonly understand to be an appropriate definition of democracy within our current context. However, the answer to that enquiry is in turn integrally linked to our history.

This year we celebrate the 100-year anniversary of Africa's oldest national liberation movement, the ANC, the formation of which occurred at a time when for the disenfranchised majority democracy remained only a dream and an ideal. However, even then, although it was not tangibly within the frame of our lived experience, it was not an obstacle to us conceptualising the shape and character of democracy in a post-apartheid South Africa. The Freedom Charter turns 57 years old this year and remains of enduring value and relevance today, especially since many of its principles have found their way into our Constitution.

Surely what democracy meant then cannot and should not be divorced from its conceptualisation in our present circumstances.

I turn now to NADEL's own history and the role, dating back to its official formation in 1987, which reflects its significant influence in shaping and developing the constitutional democracy that replaced the illegitimate apartheid regime post-1994. In fact its creation came about as result of the decision of the Mass Democratic Movement to anticipate the creation of a new legal order that would be applicable to both the legal fraternity and more generally.

This was a time when the establishment legal professional bodies, such as the General Council of the Bar (GCB), the Association of Law Societies (ALS), along with the judiciary, did not enjoy any legitimacy. The Pretoria Bar, for example, only tendered an apology in 1997 for its refusal to admit black advocates under apartheid. And it was the Johannesburg Bar Council that had Bram Fischer, struck from the advocate's roll in 1965 for his involvement in the struggle against apartheid and lead role played in as defence counsel in both the Treason Trial and Rivonia Trial.

While the majority in the legal profession chose privilege, personal ambition and prejudice over democratic principles and human rights, there were a minority of lawyers who chose at great personal sacrifice to join the majority in the trenches of the struggle. The names of Nelson Mandela, OR Tambo, Griffiths Mxenge, Victoria Mxenge, Bheki Mlangeni and others spring to mind when we remember this history of sacrifice and risks. It was from this grouping that NADEL emerged, with its members continuing to play an invaluable role in the ongoing transformation of the legal profession, judiciary and justice system in post apartheid South Africa.

THE MEANING OF DEMOCRACY

What does democracy mean within our current context? Some lawyers often tend to frame their response along more narrow legalistic lines, with the emphasis on:

• The principle of separation of powers;
• The rule of law;
• Constitutional sovereignty; and
• Civil and political rights contained in the Constitution.

Without detracting in any way from the importance of these values, we have to ask if these are sufficient to guarantee a democracy that is enjoyed equally by all.

What is the role of the public and civil society in a functioning democracy that is based on the values of a developmental state?

In terms of the expanded definition unemployment is currently at 35.4%. Income inequality in South Africa is the highest in the world and half of our population survives on 8% of national income while the other half enjoys 92%. In 2007 approximately 71% of African female-headed households earned less than R800 a month and 59% of these in fact had no income, while 58% of African male-headed households earned less than R800 with 48% with no income. The educational profile of the unemployed reflects that over 60% of the unemployed have not completed matric level education.

Even if we were to establish the best judicial, legal and governance systems in the world, none of these would be capable of delivering democracy without us addressing the massive rates of unemployment, poverty and inequality. If equality, as a right protected in the Constitution, is considered to be a cornerstone of our Constitutional democracy, it cannot be correct for us to say that we have a functioning democracy in the true and broadest sense when in 18 years we rapidly moved from being one of the most unequal society in the world to be the most unequal society in the world.

Our national struggle has been against the three interrelated and intertwined antagonistic contradictions - national oppression, class exploitation and women's oppression. To this day poverty afflicts more black people and women more than anyone else. Unemployment discriminates according to race, gender and geographical allocations. Inequalities are mainly between black and whites. Class exploitation remains, and in fact we can argue it has worsened if you look at the rate of profits in the face of casualisation, subcontracting and poverty wages, reflected by the statistics that 40% of workers live on a R10 a day.

The cornerstone of democracy is accountability and participation, as against representative democracy and increasing power of the leadership. A perfect democracy, amongst other things, means the leadership must be on their toes, respecting and fearing the masses and not the other way round. We need an educated and engaged public and civil society that is capable of holding all institutions of governance accountable. However, the current socio-economic context disenfranchises the majority from being able to play this role meaningfully.

On Constitutional Sovereignty

We note the unfortunate remarks made by the Deputy Minister of Correctional Services, that the Constitution contains "fatal concessions",which were a compromise that "emptied the state" and had migrated power away from the legislature and the executive only to vest it in the judiciary. This and other similar sentiments have given rise to the concern that the principle of Constitutional Sovereignty is potentially under threat.

The Constitution, as a product of a negotiated settlement, does contain certain compromises that COSATU has remained critical of, including the property clause, which has constrained land reform. However, we are of the view that, with a few exceptions, as an overall package it remains one of the most progressive Constitutions in the world. And more specifically, in relation to constitutional sovereignty, it represents the necessary departure from our apartheid past when the Executive and Legislature could impose the will of a minority over the disenfranchised majority.

Transformation of the Judiciary and the Legal Profession

Notwithstanding the fact that the judiciary is a branch of government, internationally emphasis is placed on its role in acting as an arbiter in the justice system, and more specifically within the context of promoting democracy its role is to enforce the law, including on the Executive. Here considerable emphasis is placed on protecting judicial independence and to a much a lesser degree judicial accountability.

Cabinet announced in November 2011 that it intended conducting an"assessment of the judicial system and the role of the judiciary in a developmental state, to be carried out by a reputable research institution".The emphasis would be on ensuring that the judiciary conforms to the transformation mandate as envisaged by the Constitution.

This has raised considerable criticism from the organised legal fraternity and sections of civil society, especially when viewed against the statements made by the State President that the "powers" of the Constitutional Court would be reviewed.

It is difficult to provide a firm response to the anticipated review when the formal documents and terms of reference are yet to be released.

Despite these constraints we can state upfront that we view the protection of judicial independence and accountability to be one of the cornerstones of our democracy and one that is integral to the promotion of a developmental state. Independence however does not mean a judiciary that is insensitive and indifferent to the harsh socio-economic reality of the majority of the population.

We inherited a largely untransformed judiciary that could be described as neither independent or impartial, principles that were only made possible with the coming into power of the first democratically elected government in 1994.

Here we note the findings of the Truth and Reconciliation Commission:

"Part of the reason for the longevity of apartheid was the superficial adherence to‘rule by law' by the National Party (NP), whose leaders craved the aura of legitimacy that ‘the law' bestowed on their harsh injustice......the courts and the organised legal profession generally and subconsciously or unwittingly connived in the legislative and executive pursuit of injustice ......There were, nevertheless, many parts of the profession that actively contributed to the enrichment and defence of apartheid through the courts."

Here we note that transformation is an ongoing process, which many in the judiciary and the legal profession continue to resist. The challenge therefore remains on how to drive forward that transformation without inadvertently promoting objectives that would facilitate the erosion of a valuable check against the exercise of state power.

Judges have not been eager to embrace the principles of judicial accountability, as reflected in the difficulties experienced in introducing firstly judicial education initiatives and secondly a judicial complaints mechanism. More recently in what appears to be a unified stance, judges have overwhelmingly objected to proposals that they be required to disclose the assets and business interests belonging to them or their immediate families, on the basis that this would be an intrusion of privacy.

COSATU is on record in other forums supporting the call for lifestyle audits for senior officials in the public sector as this would not only promote accountability and transparency, but would also counter abuse of resources or the potential for conflict of interest and corruption. As a branch of government we see no reason for the judiciary to be excluded from the requirement to disclose their financial interests. Here we must applaud NADEL for explicitly supporting this proposal.

Having noted these ongoing challenges around transformation and accountability, we are of the view that, especially at the level of the Constitutional Court, valuable judgments have been handed down that have cemented key socio-economic rights for the working class majority. Two prominent examples of these went against Government policy, namely the Government of the Republic of South Africa v Grootboom in 2001 and the Minister of Health vs. Treatment Action Campaign in 2002. The first required that government ensure the provision of emergency housing and the second required that antiretroviral medication be provided to expectant mothers with HIV.

We must acknowledge those aspects of the Constitution which reflect the inherent problems associated with the negotiated settlement that we have been forced to live with, such as the property clause. It is in relation to these limited aspects, where at times the most conservative elements in society with the resources, are in the most advantageous position to pursue their vested interests in the courts.

For example, last year an adverse ruling was made by the North Gauteng High against the State and in favour of Agri SA, which now requires that compensation be paid to farmers as a consequence of the Mineral and Petroleum Resources Development Act (MPRDA) vesting mineral rights in State. This is based on the assumption that this amounted to expropriation, in spite of the fact that South Africa was amongst a small minority of countries that allowed private ownership of mineral resources prior to the MPRDA.

This case will in all likelihood be eventually taken on appeal to the Constitutional Court and we would hope that it would seize the opportunity to rectify what we believe to be an extremely problematic judgment of the court below. While we have no guarantees that this will be the outcome, we remain convinced that there is no basis to reduce the power of the Constitutional Court to review the decisions of the legislature or the Executive.

The ongoing concerns regarding accountability can and should be addressed through the proposed Judicial Code of Conduct and Regulations on Judges' Disclosure of Registerable Interests. The challenges of transformation more broadly, however, are more complex and would largely have to be addressed through the composition of the judiciary.

More specifically there is a need for a dramatic shift from a judiciary that continues to be dominated by white males. More opportunities must be created for black legal practitioners, especially women, to enter all sections of the legal profession. In addition to addressing representivity in terms of race and gender, the judiciary as a whole should reflect a working class bias that is pro-poor and pro-development. This would mean being sensitive to the social and economic realities facing the majority and in particular the triple oppression of race, class and gender experienced by black (and in particular African) women.

Here we wish to urge NADEL to ensure that this process of transformation is accelerated, with the objective that eventually the bench of every court in the country is packed with progressive lawyers. This means not only engaging with transformation within the established structures of the GCB, ALS and the Judicial Services Commission, but also ensuring that this objective is driven from the inception by ensuring that law graduates at universities increasingly reflect the demographics and progressive mindsets necessary to accelerate transformation in the legal profession as a whole.

We also need to contend with the harsh reality that court rolls are often dominated by those who have the financial resources to pursue what are often narrow vested interests that are inconsistent with those of the majority. Whereas the working class majority, unless they are able to access limited categories of legal aid, are often forced to abandon their claims or cases especially when this means going up against well resourced adversaries from both the public and private sectors. Within this context it is difficult to believe that the legal profession is doing enough to promote access to legal assistance for the poor and public interest law in general.

On Corruption

In view of the escalating trends in reported corruption, incidents especially in the public sector raise serious questions around the soundness of our systems of governance including at the highest levels. Within this context we can only echo the concerns of broader civil society about legislation such as the Protection of State Information Bill (POSIB). This Bill in its current form could impose serious constraints on whistle blowing and public exposure of irregularities and incidents of corruption in the media when the relevant state information is classified. This is within a context where post-94 democracy-related legislation, such as the Promotion of Access to Information Act (PAIA) and Protected Disclosures Act (Whistle Blowers Act), has faced serious challenges in their implementation.

We have already emphasised the role of an active, engaged and educated public and civil society in promoting democracy. In our view the POSIB, in its current form, constitutes not only an attack on democracy but is a new form of disenfranchisement of the public from holding public institutions accountable

CONCLUSION

Almost 18 years after the first democratic elections, we find ourselves facing numerous difficult challenges to the consolidation of our democracy. Some of these were foreseen. For example, despite the major triumph it constituted, we knew that as with other civil and political rights, the right to vote could not translate into the sum total of democracy to be experienced by all. Real social and economic equality, as an objective in itself and as a means to enable an active and engaged citizenry is an inviolable facet of a meaningful democracy.

Issued by COSATU, February 25 2012

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