South Africa is a developing constitutional democracy with three main branches of the state. These, namely the Executive (Cabinet), the Legislature (Parliament) and the Judiciary (the courts) have original powers in the constitution. The constitution further establishes institutions to support democracy (Chapter 9), such as the Auditor General, Public Protector and Human Rights Commission. This institutional structure streamlines what others refer to as the “checks and balances” of a constitutional democracy, so that none of the arms of the state can abuse or misuse their power. The issue of independence of these institutions in a class divided society must be underlined.
Since the Presidency of the late President Mandela there have been instances where the government is challenged in court by those who have lost democratic elections. Recently there have been instances where the current Public Protector presents the office as being above other state institutions and even some of the main branches of the state. All of this must not be viewed in isolation from the general contest over or in the state as a key site of power.
Contest over the state: reflections on selected institutions
In the aftermath of the recent Nigerian building collapse and in the midst of the difficulties that the government faced in repatriating the remains of the South Africans who were affected, the Public Protector played into the gallery, “offering to help the families of the victims”. This bordered on exceeding the limits of the office and ultimately amounted in interfering with the functions of the Executive.
We have also heard from the Public Protector that her decisions are not open to criticism. This is despite the fact that in terms of our constitution, every person is entitled to freedom of expression, and that disagreement with decisions taken in the exercise of constitutional powers is not prohibited. The day the expression of a different opinion on the decisions or recommendations taken in the exercise of constitutional powers is prohibited we must kiss our democracy goodbye.
The Public Protector has also said that her decisions (actually “recommendations” or “remedial actions”) are binding and could only be reviewed by a court. We now all know that the Judiciary disagreed, and that in fact some of the decisions arrived at by the Public Protector are subject to other laws. It would therefore be unlawful to implement them without following due processes even if rubber-stamping was granted. In turn, those due processes must be followed in good faith without predetermined findings and sanctions. In this regard due processes are ultimately decisive vis-à-vis the recommendations or remedial actions of the Public Protector.
In a recent judgement by a High Court in the Western Cape the Judiciary ruled that the Public Protector`s recommendations are by that very nature not binding but that they had to be taken seriously. In other words both a blanket rejection and rubber-stamping of the Public Protector`s recommendations would equally be unreasonable. The Public Protector has indicated an intention to appeal against the judgement which ironically has been made by the very court that she said is the only institution that could review her (i.e. the Public Protector`s) decisions.
In another instance she referred to an Inter-Ministerial Committee established by the Executive to investigate the Nkandla project as a small committee whose findings are to a large extent confirmed by the Public Protector`s investigation except that she went further than that especially against the President. It is mind-escaping how possible it is that an important function of one of the main branches of the state (i.e. Executive) to establish a committee in order to deal with a specific matter is referred to as just a small committee by a “supportive” institution.
Meanwhile comments made by the Chief Justice show that he tends to support the deepening of democracy and access to justice by the majority. However, in addition to this correct perspective the Deputy Chief Justice seems to be aligning more with a different narrative which views the democratically elected government of the day in a negative light. The fact that the different branches of the state are independent does not mean that the only people within the state who hold and express political views, including by voting when elections are held, are those in the Legislative and Executive arms of the state. Neither does it mean that independence (actually relative independence) is independent from the base-superstructure (i.e. state-economy) system viewed holistically as one-whole.
Continuous division of labour in a single system
As the renowned Italian scholar and communist Antonio Gramsci states in his Prison Notebooks, the functions exercised by the various arms of the state – the Legislature, the Executive, the Judiciary and other related including supportive institutions – are not mutually exclusive or do not exist independently of one another. Those functions represent a continuous division of labour in a single system.
In South Africa the Legislature (Parliament) makes the law which comes into effect once the Executive (State President) promulgates it by signing it off. The Legislature also exercises an oversight role on the Executive. If a person breaks the law (or an Act of Parliament as also referred to), that constitutes an invitation to the institutions such as the Police and the Prosecution which have political leadership in the Executive authority exercised by the respective Ministers to deal with the transgression. The cycle is completed by the Judiciary which has its functions based on the law as passed through by the Legislative arm of the state and Promulgated by the Executive arm.
In Marxist terms, the totality of the above-mentioned institutions, regardless of the incumbents manning each one of them at each given moment, constitute the superstructure. The superstructure is erected on the economy which constitutes the base. Gramsci referrers to the base as the ultimate decisive force or determinant of what is going on in the superstructure and in society at large. Nevertheless this does not mean that the superstructure does not have influence in what is going on in the base.
There is a relationship of mutual influence, although not equal in magnitude, between the superstructure and the base. This is why in most cases political struggles tend to be concentrated on a contestation to win the superstructure (mainly the government position) in order to use it to effect changes or strengthen status quo in the base (economy) and the legal doctrine respectively.
The separation of powers doctrine misunderstood could result in a deviation from the cause of the revolution. The African National Congress (ANC) has won all general elections since the inception of democratic election in South Africa. This power (which constitutes a mandate) must be utilised optimally both in the Legislative and Executive arms of the state to effect changes. This precisely includes the repeal of all colonial-apartheid laws and their replacement with the laws that are consistent the National Democratic Revolution (NDR). This must lead to radical economic and social transformation to answer the pressing questions and the overwhelming material and cultural needs facing the people – the majority being the working class and the poor.
Recently we have seen, in opposition to this direction, any talk of constitutional amendment by the ANC led democratic revolutionary forces being criminalised if not forbidden by the opposition and some in the media alike. This is against the fundamental principle that the constitution must serve the people, and that rather than a dead monument, it is in fact a living document that must keep pace with the time.
However we have in contrast seen the hypocrisy in both the opposition and media camps in which case there are sections of the media that play the role of the opposition extended. Part of the new phenomenon of the hooliganisation of Parliament by a DA-EFF brat-pack axis includes a demand, either for a constitutional amendment on the election of the Speaker and Deputy Speaker or the replacement of the democratic process of election by some arrangement to “affirm” those who lost on the ballot in those positions.
The likes of the DA`s Helen Zille who are opposed to the revolution must not be allowed to undermine the democratic popular mandate of the people. The NDR must not be abandoned. It must be advanced, deepened, intensified through the second radical phase, and defended. This is the basic mandate of the ANC in the position of government from the overwhelming majority of the people to move towards the goals of the Freedom Charter!
Article by Xolile Nqatha, Xolile is SACP Eastern Cape Provincial Secretary, and writes in person capacity.