Mangosuthu Buthelezi’s Weekly Newsletter to the Nation
My dear friends and fellow South Africans,
I have always maintained that our constitution is the finest in the world. It is, in my view, simply beautiful. Boldly it sets forth how our country should be governed and the rights and responsibilities of all whose home is South Africa.
The constitution was a compromise document driven by our rather crafty, but ultimately successful, elite transition from minority to majority rule; one in which we avoided anarchy and bloodshed.
Liberty – freedom – is the golden thread that runs through constitutionalism. History teaches us that in order to practise liberty, a nation must have a critical mass of individuals who truly grasp it.
Well-constructed institutions and well-crafted texts, like those we enjoy here, do not of themselves ensure freedom.
Yet, the constitution, I believe is the ultimate arbiter of freedom.
That freedom is best protected and promoted by the ‘separation of powers’. It is worth briefly recalling the origins of the notion of the separation of powers. In 1690, John Locke, in his work "On Civil Government", said that a government can only function effectively and justly if the three powers of government are independent of each other.
They are the legislature (the power to decide the laws), the executive (the power to execute the laws) and the judiciary (the power to decide whether a person accused of breaking the law is innocent or guilty).
Locke’s idea was taken up by Montesquieu and inspired the drafters of the constitution of the United States of America. Constitutionalism based on Locke, Montesquieu and de Tocqueville has since become a global standard.
As South Africa and the international community reels from the fallout of President Thabo Mbeki’s dismissal of the Director of Public Prosecutions, Mr Vusi Pikoli, one cannot help but feel that this might be another indicator of how the ANC’s relentless pursuit of the ‘national democratic revolution’ is undermining any notion of a separation of powers in South Africa. In other words, recent events are systemic.
We see this most clearly in the political and public policy sphere. Now that the ANC enjoys unfettered power in all nine provinces, the major challenge facing opposition parties is to strengthen Parliament’s policy oversight role, particularly, as I have just noted, the principle of the separation of powers is becoming increasingly assailed.
Readers might recall how the Minister in the Presidency, Essop Pahad, objected to my statement in 2004 that over the last decade most legislation did not emanate from Parliament, but from the inner workings of the executive and, worse, the ruling party’s headquarters at Luthuli House. He saw no problem in the President summoning Premiers and Mayors "in a structured manner from time to time to discuss how to co-ordinate efforts to create a better life". I don’t think Stalin ever spelled out his vision of complete hegemony so crisply.
I have long argued that the antidote to this creeping Sovietisation is to preserve the distribution of power in several competing centres of policy formulation. These include not only several autonomous levels of government, but also the guarantee that civil society may remain separate and distinct from the state.
The incipient Sovietisation of our system governance has also resulted in a widening gap between public policy aspiration and implementation.
Patently the present bureaucratic overload is rendering central government incapable of coping with the nation’s systemic social challenges. These range from combating the HIV/Aids pandemic, fighting rampant crime, the provision of healthcare and welfare grants, to the crisis in education.
The most pressing crisis at the present time, however, is the one engulfing the presidency. I have no reason to believe that the President is concealing information or protecting an individual implicated for murder. I would go further and say knowing the man as I do, I find it highly unlikely.
The danger is that because of the erosion and the lack of application of the separation of powers the President’s actions are being perceived in the sense that Mr Mbeki is pursing a political agenda and settling personal or party-political scores. I sincerely hope this is not the case.
Leon Jaworski, the Special Prosecutor during the Watergate Scandal which spelled the end of Richard Nixon’s presidency said this of the American constitution: "From Watergate we learned what generations before us have known; our constitution works. And during Watergate years it was interpreted again so as to reaffirm that no one – absolutely no one – is above the law."
Will our near-perfect constitution stand the test of time? Will it prove to be a living document capable of withstanding momentary political pressures from those currently in power? No constitution can defend itself without a group of dedicated constitutionalists committed to the preservation of principle. For the sake of service delivery, the maintenance of the independence of the judiciary and the credibility of our democratic institutions, we, the dedicated constitutionalists, must strike to reassert the separation of powers. We must strike now.
Prince Mangosuthu Buthelezi MP