Mbeki’s going is just another tumble in the tug of war that our country has become, instead of the UBUNTHU, give and take to which we aspire. Most of the blame for our current state is laid on individuals, who are often accused of abusing the Constitution. 

We persist in believing that if politicians stay within the bounds of the SA Constitution we will avoid the excesses of a One Party state or a slide towards Zanufication. Yet, current feuds regarding the SABC, Scorpions, Selebi and Zuma’s trial,   have not resulted from violation of our Constitution, but from policies and laws born through adherence to its code. Likewise, the arms deal,  the buried travel scam and the worst ills of our time; unstoppable crime, rampant AIDS, moral decline, corruption and poverty, are products of our supreme law and its founding provisions. It has generated a country that is a playground for tug of war, instead of a network of give and take. 

We have had 15 amendments to the Constitution, most of which, like floor Crossing, entrenched the shenanigans of a One Party state. Instead we should introduce amendment that ensure that we do, indeed,  make leaders accountable, make actions more important than words, and give incentives to advance transformation. We should have legal clarity and foster morality, rather than entitlement.  

Public good is both a public and a private affair. It requires an efficient and accountable government and a tolerant civil society that nurtures and shares.

More than that, it requires a carefully crafted system of checks and balances between those in power and those they serve.  

The American Constitution, based as it was on the efforts of idealists and pragmatists, set an admirable standard. James Madison in the Federalist Papers, outlined  the essential features  necessary for adequate checks and balances in a democracy: separating the Executive ( our President and ministers)  and the legislature  (our MP’s) ,creating an independent judiciary, locating power close to the people ( bottom up, unlike ours which is top down), catering to differences at state/provincial level, establishing independent institutions to safeguard democracy ( our chapter 9 institutions) and ensuring individuals certain inalienable rights, such as first generation rights, to privacy and freedom of speech. But even with all of the above, Madison insisted that the single most important factor was a vigorous and independent civil society, to provide competing sources of power and influence. He had no illusions about the capacity of power to corrupt and of absolute power to corrupt absolutely. He also acknowledged that humans have an innate tendency to be selfish and power hungry. A competing tendency to nurture and love must be cultivated. 

Our Constitution has burdened us with an electoral system that is not accountable, a power structure that is centralised, second and third generation rights that are unenforceable tools of populism and Chapter 9 Institutions that lack independence and therefore cannot safeguard our democracy. This includes the ‘Independent’ Electoral Commission, which the ANC rejected at Polokwane for good reason.   

Worse even than these, is the co-option of civil society to become multiple agents of the state. Every layer of power is bound to one master. Every institution flows from one source. To fly one must be a patron, a member of the sky diving team. Hence when the source is uncertain, as in Zuma or Mbeki, tug of war is the order of the day. The current split in the ANC has provided the first hint of an independent legislature as the new ANC competes with the old, to beef up its team and prepare for its patrons. Partisan interests may for a short while masquerade as independence, but they easily spill over into squabbles and violence. 

Our top down system of co operative governance has engendered a confusing political system, filled with duplication, hence remarkable for its inefficiency, lack of transparency or accountability.  Provinces are bloated bureaucracies that expand government patronage. Ten political platforms abound with TASK Teams and Commissions. All are appointed by Ministers or majorities and are a means of widespread co option of civil society. Corruption is easy. No amount of promises can compensate for the resultant lack of delivery.  

Boards and statutory Councils follow a similar pattern, with vast discretionary powers for Ministers. Since all other entities can be regulated in an attempt to achieve equality, businesses, universities and professions fall into the net. This system creates a breeding ground for patronage, not pluralism, in effect hardly different from subservience to kings and dictators. 

In spite of its requirement for participatory democracy, that participation is often a sham, providing a platform for the ruling Party to parade people’s rights. In reality the public is far removed from the central seat of power. 

As for the rights, making our Constitution one of the most respected in the world, they must be read with the Limitation Clause, which allows every right to be limited for the sake of freedom and equality. The two conditions are often contradictory and the Constitutional Court can choose between them to promote the objectives of the limitation. Hence a teacher’s or medical intern’s right to work where they choose, can be negated by the government’s right to engineer equality. Businessmen’s right to employ who they chose is trumped by government’s right to impose BEE and Employment Equity.  

Other rights can be absurdly protected, such as the right of alleged rapist teachers or a National police commissioner to rest at home with full pay, while their cases bounce around in barely functioning courts. Government does not limit the right of murdering, raping criminals to enjoying TV, to vote or to live to escape, at the expense of law abiding people, futilely ensured the right to freedom and security of the person. Rights applied selectively, breed cynicism and disdain People with high expectations, who feel betrayed and powerless, migrate from frustration to violence. Trumpeted rights are no substitute for the obligation to deliver. 

Another major factor responsible for tug of war rather than give and take, is the lack of independence of Institutions supposed to protect our democracy. The Constitution provides for the President to appoint the Public Protector and Auditor General from persons recommended by 60% of the Assembly and nominated by a committee proportionally representative of political parties. For all other Commissions, a mere majority of the Assembly nominates the persons for appointment. Hence regardless of words claiming the contrary, none of these institutions is independent, including the Commission that appoints the Judiciary, Human Rights Commission, Youth Commission and Electoral Commission. Nor is the Public Accounts Committee, comprising members of parliament and intended to oversee the finances of government.

These Institutions protect One Party rather than many people. When one party has two masters, the result is tug of war. 

Unlike the Interim Constitution, supported by the IFP, the one that now guides us has no Entrenched Principles. A two thirds majority can change it as they please. 

Would all of this matter if we were imbued with morality? Even there the Constitution plays a role. It does not acknowledge a higher authority than itself.  Its rights focus on the individual has weakened hierarchical authority of teachers, parents, traditional leaders and God. Values such as integrity, compassion, gratitude, goodwill and love are developed by parents, teachers, leaders or spiritual mentors and must be constantly reinforced through example, acts having consequences and people acknowledging what they owe others and the past. When leaders are corrupt and not accountable, when words are preached but not practised and when crimes go unpunished, it seeds society with dishonesty that has a ripple effect. People with a weakened moral fibre, who feel entitled or deceived, take the money and run. 

 Money, power and populism have become our country’s hallmarks as we tug selfishly at one another in the absence of a system based on incentives, accountability, integrity and balance. One with checks and balances, whereby those who benefit themselves benefit others, would generate the goodwill we crave.

Dr Ruth Rabinowitz M.P(MB BCh)
IFP Health spokesperson

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