Occasional Paper 1/2023
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Inclusive Society Institute
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Inclusive Society Institute or those of their respective Board or Council members.
JANUARY 2023
by Dr Klaus Kotzé
BA Social Dynamics, BSocSci Honours Political Communication, Master in Global Studies, PhD Rhetoric Studies
Abstract
“The Constitution belongs to all of us, not just the ruling party, or one section of South Africa. We all wrote this collectively with our blood, some with their lives, with our tears and with our sweat. We claim it as ours, it enshrines the rights that make us live as South Africans, and we will protect it because it belongs to us” (Ramaphosa, 2012).
Introduction
South Africa faces an existential crisis. Our extensive national failings demand that significant intervention and change are required to save and restore the democratic edifice. At its core, South Africa is at an inflection point. It is not sufficient to only isolate and prosecute suspected parties. The crises cannot be resolved by negative action. Instead of another commission or inquisition, the citizenry must be broadly central in rethinking and then co-creating a new socio-political order.
The citizenry, as those whose interests are directly affected by the condition of the state, must actively reimagine the way the state functions. They must consolidate a comprehensive approach to the state that places positive, transformative action first. Everybody with an interest in the country must contribute to substantial renewal. In so doing, the citizens will be discharging their Constitutional duty and contribute to the fulfilment of the Constitutional goals of transformation and a people-driven state.
We should adhere to former Chief Justice Chaskalson directive, that “the Constitution calls for positive action to confront the apartheid legacy of poverty and disempowerment and build a truly non-racial society committed to social justice” (Chaskalson, 2012).
The Inclusive Society Institute (Institute), through this position paper, offers a brief assessment of the structure and purpose of the state. After critically looking at its orientation, the paper proposes that the best path towards a socially just South Africa is through a transformative, people-driven state. A state that through co-operative democracy pursues the national interest. In pursuit of these goals, the Institute proposes that a process be undertaken whereby civil society unites in order to reimagine its relationship with the government and itself and whereby it reactivates its role in the state.
The state should serve the national pursuit
The structure of a state is not arbitrary, nor is it pre-determined. When South Africa, through its leaders and citizens, decided on a Constitutional democratic structure, it was a product of a multitude of factors. Both external and domestic influences determined the resultant political-economic order. As was the case in the early 1990s, so it remains that decision-makers draw from global standards and influences when determining the pathways and modalities of the state. While it is useful and expedient to draw from global examples, the contemporary international crisis of democracy, detailed broadly by Freedom House (Abramowitz, 2018), the increasing sovereign crises, as well as a general move towards multipolarity (Shapiro, 2021) compel states to pursue their individually articulated national interests.
Today, due to international polycrises, democracies can only be strong and serve their people when they are first organized by and give expression to internal demands and cultures. Instead of deriving its legitimacy from the contemporary perception which sees democracy as the sole legitimate form of political organization – a panacea propelled by status quo global powers - a democracy’s authority is instead always derived from and must be representative of the citizenry. Democracy is therefore not an end or a product, as remains erroneously implied about South Africa. Instead of achieving democracy in 1994, South Africa attained the ability to be democratic. Democracy is a way of doing things. Simply, it is a process whereby the expression of power is exercised in the establishment and execution of power.
It is from the Constitution, the foundational text and lodestar of the nation, that the form and intelligence of the state are to be determined. Following the South African people’s long struggle against authoritative and repressive state power, the final Constitution of 1996 establishes that the people shall govern. In abolishing the former system of Parliamentary supremacy (rule by law), the enactment of Constitutional supremacy (rule of law) effectively dislodged power from the hands and whims of a ruling party. Instead, it directs all subjects of the state to be guided by the expression of principles and values. The concepts and ideas of the Constitution form the bedrock of South Africa’s national culture. While governmental structure and policy orientation may and do change, the Constitution as grundnorm is the “foundational principle from which the validity of all norms can be drawn” (Oxford, 2022).
Instead of witlessly replacing one dominant theory (apartheid) for the next (liberal democracy), it is from the popular transcendence of the differentiated power of the Apartheid system that the democratic order gains its operational and fundamental legitimacy.
It follows that for any political action to be legitimate, it must accord to the Constitution’s aspirational and transformative goals. A critical assessment of the government’s policy choices and achievements should first be read in this regard. The question must be: does the policy or action advance social justice for all?
It is too often neglected that it is not only government that must pursue the Constitution’s aspirational ends. The citizenry too is charged, in the spirit and deed of republicanism (South Africa is a republic after all) to participate in democratic action. While much is (rightly) made of government’s failures, the republic is doomed when the citizenry fails to go beyond merely being rights seekers.
Voting is the fundamental popular action that conveys representative authority. It is a pillar upon which the national order rests. If an electorate majority confers political legitimacy, then the 54.13 % who did not vote in 2021 municipal elections, effectively invalidated the South African political order. This decided political expression (seemingly unbelievable following the long-pursued quest fulfilled in 1994) symbolizes the crisis of legitimacy, which if not urgently addressed portends to unravel the South African project. Not only does this failure suggest that the ruling party is no longer the popular force it once was. But, if power is not claimed through ‘the will of the people’, it will be challenged through alternative, destructive ways. Such a challenge will fundamentally change the basis and thus the entire scope of the national political order. A fatal strike to the heart of South Africa as we know it.
Herein lies the vital task for the nation. It is of cardinal importance that the citizenry debates and resolves the question of the national structure. The debate on state practice, the role of government and the role of the citizenry. For the South African state to be legitimate, the citizenry and government must co-operate in constituting the state.
The transformative purpose of the state
The preamble to the Constitution serves an important role. It describes the national purpose. It sets the scene, offering a national starting point. It then articulates the national goal. Serving as the foundation to the Constitution, the preamble provides primary guidance to the state. The first words of the preamble undertake a significant role. “We, the people of South Africa”, serves to permanently end the previous dominant political theory and the practice of division (Republic of South Africa, 1996). This phrase creates and then instructs the character of the nation, as per the national motto, ! ke e: /xarra //ke (diverse people unite). While the state continued with the democratic handover in 1994, the nation was birthed, as one. Following the formation of a single citizenry, as “we”, South Africans are enjoined to consider and “recognise the injustices of our past”. The declaration of “we” struck a fatal strike to the edifice of apartheid South Africa. It transcended this period and commenced a new era.
The momentousness of this strike does not mean dwelling in the past. These two initial markers, the communal ‘we’ and the location of the present in relation to the past, originate the design of the national goal. From before where there was injustice, South Africans of all shades and preferences must together create justice. From before where there was differentiation, we must create unity, peace and shared prosperity.
The bulwark of the new South African nation, its ethos, is transformation. For any political, social and economic action to be legitimate, it must give expression to transformation. To “heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights” (Ibid). Significantly, since differentiation is denied through the creation of ‘we’, any interpretation suggesting that transformation refers to the advancement of one racial or ethnic group above another is invalid. This is a lazy perception. Instead, in liberating all South Africans from the over-reach of repressive state power, transformation, is first, the freedom and duty of all to “improve the quality of life of all citizens and free the potential of each person” (Ibid).
What does it mean for the state to have transformation as its purpose? In sum, it gives the people and its representative government a mandate to transform. During its time in administration, the African National Congress (ANC) has presented itself as a transformative force. The ANC government, through its various policies and strategies, has undertaken to implement what it calls a Batho Pele (people first) approach. This guiding principle was introduced by the Mandela administration in the White Paper on Transforming the Public Service Delivery. According to the White Paper, Batho Pele seeks to align the orientation of the government to that of the Constitutional Principles. “Access to decent public services”, said Mandela in the foreword to the Act, “is no longer a privilege to be enjoyed by a few; it is now the rightful expectation of all citizens, especially those previously disadvantaged” (DPSA, 1997).
The progressive goal of giving effect to people-centred transformation, is both strategic and gives expression to Constitutional principles. While these policy ideas are laudable and correct, their execution has fallen well short. The reasons are manifold and diverse. The failures and corruption of the ANC are well documented and have slowly been receiving prosecutorial attention. This is particularly the case following the revelations emerging from the Zondo commission into allegations of State Capture which showed how policy and administration tools were susceptible to nefarious political influence.
The role of politicians and political influencers has become a feature of and a threat to South African democracy. The exploitation of state resources by connected individuals has taken place against the interest of the people. The failures of the state are not only the fault of the influencers and implementers. Beyond the crisis of corrupt officials in pursuit of national control, the very structure of the state has become too centralized around politicians. Inordinate centralization has facilitated the pursuit of narrow interests. The government’s statist approach has built a dependency on an overburdened state.
Furthermore, and of particular interest to scholars and analysts, the distinction between a genuinely people-centred state that offers free basic services and one which dominates society has not been established. While its strategic ends are people-centred, its strategic means and ways are statist. It is of significant concern that the public programmes and the business of the state have become dominated by individuals and government departments that undermine constitutional values and avoid responsibility and consequences. This pathology was gravely exemplified by the Zuma administration.
The excessive regulation under the COVID-19 induced Disaster Management Act signifies a high-water mark for state interference. Exiting the era of the pandemic and resolving the accusations emerging from the Zondo Commission offers a strategic opportunity for a true reform process that leads through Constitutional principles. According to a law expert writing for the Daily Maverick under the nom de plume Professor Balthazar, there is a tangible threat of authoritarian statism seizing this strategic opportunity and ushering in a second and more rapacious chapter of state capture. “Either enough people of goodwill defend our constitutional model, however imperfect it has proved, or the alternative will be an authoritarian populism that make the Zuma years feel like a Sunday picnic. Constitutions do not survive because of majestic promises contained in the text. They survive because people fight for their continuation in the manner millions fought to defeat the racist authoritarianism that preceded 1994” (Balthazar, 2022).
Balthazar confirms that South Africans are all Constitutionally charged to transcend the divisive era and to ensure that we do not again become dominated by an authoritarian state. Uniting in this goal and speaking with one voice should be every South African’s primary goal. This is the act of transformation.
At this moment of inflection, it is worth recalling how the political project of the 1990s supplanted the Apartheid state. Transformation is a process that must be put into action. President Mandela was a master influencer. He understood the power of persuasion. He led the country to adopt and express the values and ideas of the Constitution. Through his presidency, Mandela enacted the principles and values of the Constitution. He gave expression to and therefore embodied the transformation of the oppressive old into the inclusive new. In doing so, his leadership inspired ordinary South Africans to do the same. To become active citizens and embody the transformed state through their everyday actions (Kotzé, 2021). To confront our contemporary crises, we cannot wait idly for another generation of leadership. Instead, we can all take from the approach of Mandela (and others) and embody the Constitutional values.
South Africa: A transformative and people-driven political order
When considering the points raised above, it emerges that South Africa’s political order should be transformative. It should be people-driven.
Former Chief Justice Langa reminds us that active, popular transformation lies at the heart of the new Constitutional order (Langa, 2006: 1). Transformation does not only equate to what has been achieved regarding race and representation. Transformative Constitutionalism is an ongoing process. “A way of looking at the world that creates a space in which dialogue and contestation are truly possible, in which new ways of being are constantly explored and created, accepted and rejected” (Ibid, 354). Transformation can therefore be seen as the movement from one normative system to the next. To exemplify this understanding, Langa points to the epilogue of the interim Constitution of 1993 as providing the basis for transformation. “Constitution provides a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful coexistence and development opportunities for all South Africans” (RSA, 1993). The bridge provides an arrangement for transformation. It is only through the personal commitment of the citizenry to cross the bridge, that it has utility. Put differently, the bridge represents the classic social contract between the state and the citizenry. And between the citizenry itself. Symbolically these “represent binding structures that are formative…the social contract forms a constitutional submission of citizens to a central authority”, the Constitution (Kotzé, 2021).
Both structures require commitment and personal action of the citizenry. “The signing of the contract and the crossing of the bridge represent the commencement, though not the achievement, of transformation. The act of democracy entirely depends on the democratic practice being shared. Deliberation requires two or more active agents. It is incumbent upon individuals to take stock of policy, to shape and build the nation. In returning to the post amble, we see that it forms a call to action. ‘The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past’” (Ibid).
The Constitution was greatly influenced “by both the public input as well as the deep involvement of civil society in the negotiation process” (Jagwanth, 2003). Speaking and standing up against the former regime provided the normative basis for civil society in democracy. It was through their acceptance of people from other races as equals, the explicit denial of the divisive apartheid system, that the people of South Africa claimed their citizenship. It is a truism that power and independence are never given, it is always claimed through its enaction. Whereas the admission of equality was the condition for a unitary state, the performance of transformative Constitutionalism is the requirement for a thriving democracy.
It is therefore that unlike under apartheid where civil society existed in opposition to the state, today this relationship cannot only be an antagonistic or negative one. Through the founding of Constitutional democracy where people claimed their power, today civil society must collaborate with government. It must do so constructively and independently. Civil society does not only have a central role in the execution of Chapter Nine institutions, such as the Human Rights Commission. It has a direct responsibility to ensure the delivery of constitutional goals (Ibid, 13).
The citizenry is central to transformative democracy. To suggest that the citizenry is the state is not an exaggeration. The Greek root origin of the word city (today in political terms, the state) and citizen is the same. Citizenship, therefore, means that one belongs to that geographically inscribed political community. As the city belongs to the citizen, the citizen also belongs to the city. Both have the duty to serve the other. In the South African Constitutional context, statism must be transformed into citizen-led democracy. This does not expropriate duty and responsibility of the government. Instead, it supplements and thus supports the work of the government. The contemporarily popular perception that the people must oppose the activities of government is misplaced. The best way to prove its invalidity is to build partnership and reciprocity.
The Constitution, much like the Freedom Charter, stresses the significance of public participation in the practice of governance and statehood. A just government would not only have to be based on the will of the people, but the citizenry would also have to be consulted and co-operated with actively. Claiming our place in this co-operation is one of the first steps towards the national solution.
Today, throughout its social and pollical realm, there is a growing chorus claiming the need for people to take back South African democracy. Theirs is a call to take inspiration from the period leading up to 1994. For citizen-led initiatives to restore the state, they should embody the deliberative political force of preceding years. Former Deputy Finance Minister Mcebisi Jonas, at a recent Defend our Democracy conference, invoked the work of Amartya Sen. He suggested that co-operative democracy (again) be adopted as South Africa’s guiding principle (Jonas, 2022). Co-operative democracy which departs from the consolidation of state control by a governing party sees government administered Batho Pele being supplanted by broader participation. Not only practiced by government officials, but by all citizens. It resolves the tension between a statist and a people-driven state. Sen, in The Idea of Justice (2009), describes a co-operative democracy as one that is defined by public reasoning and government by discussion. He suggests that it is through sharing and discussing our realities and ambitions that we build the edifice of a just society (Sen, 2009).
South Africans have an advantage. We have a deliberative recent history and a Constitution that mandates government to work closely with the people. This is the principle of subsidiarity, interpreted from section 156(4) of the Constitution. The principle requires maximum efficiency in the application of government. “The argument is that lower levels of government are closer to the citizen and can therefore make more intelligent decisions on what citizens want” (De Visser, 2010). Subsidiarity is about making efficiency the norm. As such, it is innately about the relation between government and the people. Constitutionally, the government is mandated to devolve power (decentralize) when there is a demand from the people and when such devolution will afford more efficient results. This is an important distinction to make. There must be an active demand, whereby through their interaction with the government, the people take up their civic responsibility as co-creators of the state.
The COVID-19 pandemic has been a major driver of civic action in communities. According to Siphelele Chirwa (2020), civil society had become less influential in the last three decades leading up to the pandemic. COVID-19 has removed the veil of unemployment and poverty in South Africa. As a consequence, “civil society is being called on more, we need to collaborate and connect … (During COVID-19) the work happening on the ground in South Africa has been driven by nongovernmental organizations, the challenge remains in working together with the government” (Chirwa, 2020). Both the recognition of and involvement with organizations such as Gift of the Givers has hugely increased during the pandemic.
The South African media landscape has become awash with praise for Gift of the Givers and other such civil organisations working to provide social support. An interesting phenomenon emerged where many members of the public have suggested that Gift of the Givers would perform the roles of government better than the government itself (Seale, 2020). The confidence and increased involvement of civic organisations provide an interesting lesson of how government can be restructured and improved. The colossal response to COVID-19 has activated a broad swathe of society to see and act against the immediacy of the hugely mediatized situation. Considering the Constitutional principle of efficiency and subsidiarity, these claims carry the significant potential to catalyse the structure of the state. Thereby empowering civic organisations beyond the existing reach and scope of governmental policy.
ANC elder, Mac Maharaj, recently added his voice to the chorus calling for closer cooperation between government and civil society. In an opinion piece from 20 November 2022, Maharaj suggested: “it is common cause that local government is the coal face for the delivery of services…is this not the place where we should be initiating and implementing measures, where participatory democracy should be rooted?” (Maharaj, 2022). It is exactly in giving expression to subsidiarity, that government can better perform and for society to receive just service. “Our legislation provides for establishing ward committees. Despite our desire to create a people-centred and participatory democracy, little has been done to make ward councillors engage in the ward committees in ways that involve the communities…This again is an area relating to the building of our democracy that cannot be left solely to the elected councillors. Civil society needs to carve out a role as an active partner, making our democracy participatory” (Ibid).
The task of carving out its role is an important observation. As witnessed with the distinction between people-centred and people-driven democracy, the citizenry cannot wait to be handed participatory access and recognition. Nor can it expect constructive and strategic outcomes when it does not first consolidate a comprehensive position in its relationship with the state. We can draw inspiration from the struggle against apartheid as an active embodiment of real power. The unified voice expressed towards a singular outcome did not only crush the apartheid regime. It represented the purpose and structure of South Africa’s future democracy.
A new deliberative moment
Breaking and building a state is a deliberative act. When through giving its voice to the anti-apartheid movement, by naming and shaming its injustice, and when claiming unity through reconciliation, the popular movement incorporated and embodied the principles and therefore the edifice of the new state. Constitutional democracy was legitimized and realized through a robust democratic process. A process where different groups, pursuing their respective ends recognized each other in committed deliberation and negotiation. At the time, people like Desmond Tutu showed the way. He advocated for koinonia, a fellowship between different groups. He implored the engagement between diverse people, thereby denying the strategic principle of apartheid. Through koinonia, it was possible to manifest a united voice without losing individual distinctiveness.
According to Salazar (2002), South Africa presents a remarkable example of a democracy that “both magnified and predated European colonialism, a democracy that has broken that mold without a revolution and its usual sequels…It also offers the striking case of a democracy won at the negotiating table and also won every day in public deliberation” (Salazar, 2002). In being birthed through robust consultation, the process to renew South Africa must return to the Constitution as a process and artefact. In the manner of the Tutus and Mandelas, the people again must speak and act the nation.
The present moment in South Africa resembles the latter days of the apartheid state in several ways. The governing party has several factions pursuing differing strategies. It has lost its authority and the ability to maintain order. Increasingly there is a chorus of voices calling for change, for a new way. Unlike before, where the defeat of apartheid and the ushering in democracy was the widely held goal, today such a broadly agreed destination is absent. Instead of advocating for systemic change, the calls today are for the competent and just execution of the state.
As referred to at the beginning of this piece, the global democratic crisis exists in that it lacks the arguments (and proponents) for itself. Democracies, including South Africa, have become lame; presumptive of an inevitable future. This arrogance has resulted in democrats assuming a negative approach, rebuking others while not bolstering their own foundations. Instead of chastising others, democrats must consolidate arguments and processes for effective democratic discharge.
South Africans (and the global community) can take from the democratic moment in the mid-1990s. The citizenry must seize the national moment to engage and to deliberate on the processes needed to resolve the crises. The form and conduct of the process is important. It must be open, inclusive and robust. Instead of any group or political affiliation dominating, it should be guided by the Constitutional principles. Accordingly, such a process will avoid capture and take place through mutual recognition. Whereas some may be quick to deride deliberation, tautologically referred to as mere rhetoric, the act of deliberation sees citizens claiming and expressing their political power. Through deliberation and civil acts, common ground is found, and leaders emerge. The reference to Gift of the Givers and its acclaimed founder, Imtiaz Sooliman, serves as an excellent example. It is from leaders that deliberately recognise the needs of the people that a national voice emerges.
Conclusion: Towards a new national accord
If the strategic ways of democracy is deliberation, what should we seek to achieve through it in 2023? For co-operative democracy to embody transformative constitutionalism, we need to do what South Africans cohered to do in the early 1990s. We need to establish a new national chorus. While civil organisations have different approaches to their interests, they need to agree on and then sing from the same proverbial hymn sheet. South Africans need to come together to agree upon the details of this score. In the early 1990s disparate groups with the goal of ending Apartheid and crafting a better society came together in different formats. While we can take inspiration from the Convention for a Democratic South Africa, civil society organizations should look to unite, to again form a patriotic front.
In a conference in October 1991, a broad array of organisations signed the Patriotic Front Declaration. The Declaration set out what the delegates from different formations agreed on the socio-political conditions to be. Through setting out a consolidated national comprehension, they were able to articulate and then dedicate themselves to a course of action with specific outcomes. While the substance and approach of the new declaration will be different, much in the manner of process, structure and organization can be drawn from the Patriotic Front Declaration. Neither the potential value of such a process nor its mobilizing force should be underestimated. Today there exists a national yearning for such a united front. The concluding paragraph of the Patriotic Front Declaration serves as a fitting starting point for civil society today. It calls “upon our people wherever they are to join and engage in this process emanating from our Conference to create a nation that will be at peace with itself” (United Nations Centre against Apartheid, 1991).
To realise the transformative goals of the Constitution, civil society organizations must come together to discuss and agree on the process, content and direction of a new national declaration. To give effect to the people-driven state, civil society should undertake a thorough and democratic process to agree upon and then speak with one voice.
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This report has been published by the Inclusive Society Institute
The Inclusive Society Institute (ISI) is an autonomous and independent institution that functions independently from any other entity. It is founded for the purpose of supporting and further deepening multi-party democracy. The ISI’s work is motivated by its desire to achieve non-racialism, non-sexism, social justice and cohesion, economic development and equality in South Africa, through a value system that embodies the social and national democratic principles associated with a developmental state. It recognises that a well-functioning democracy requires well-functioning political formations that are suitably equipped and capacitated. It further acknowledges that South Africa is inextricably linked to the ever transforming and interdependent global world, which necessitates international and multilateral cooperation. As such, the ISI also seeks to achieve its ideals at a global level through cooperation with like-minded parties and organs of civil society who share its basic values. In South Africa, ISI’s ideological positioning is aligned with that of the current ruling party and others in broader society with similar ideals.
Email: info@inclusivesociety.org.za
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Web: www.inclusivesociety.org.za
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