Chief Justice Mogoeng Mogoeng, National Assembly speaker Baleka Mbete, NCOP chair Thandi Modise and President Jacob Zuma — PICTURE: ELMOND JIYANE

 

Mention of the South African constitution is often followed by the statement that it is the best in the world.

Perhaps this has obscured the fact that our democratic institutional framework does, like many others in the world, have its flaws.

As public protector Thuli Madonsela said during her reaction to the Constitutional Court judgment affirming the powers of her office, the Nkandla scandal is a blessing — because it is making us alive to serious drawbacks in our democratic architecture.

Our political system is characterised by a dominant governing party, which has the largest share of electoral support among political parties.

It is dominant because it has maintained this electoral lead since the inception of democracy.

As a consequence, the ANC is in command across the landscape of institutions, at national, provincial and local levels.

Although the constitution provides for a robust system of checks and balances, with the separation of powers entrenched, as well as for institutions supporting constitutional democracy, these do not guard against the tyranny of a majority. So one party has exclusive control of two of the three arms of government: the executive and the legislature.

The legislature has a constitutional mandate to exercise oversight over the executive and to hold the president and his cabinet to account.

This means the governing party has to split itself into two selves. The one self, MPs in Parliament, have to act as a check and balance on the other self, the executive — the president and ministers.

But in essence these selves are one. Each acts on the instruction of the party’s leadership structures. As such, each is enjoined to safeguard the interests of the party and implement its directives.

Because leaders of key institutions are appointed by the president, from heads of law enforcement bodies such as the Special Investigating Unit, the Hawks and National Prosecution Authority to Chapter Nine institutions as well as judges, no section of the state escapes the ANC’s influence.

Our political system relies too much on the commitment of political parties to uphold the principles of the constitution.

Nothing has demonstrated this better than the Nkandla scandal. When the executive decided to defend unjustifiable expenditure on President Jacob Zuma’s private home, the public protector was made redundant. When ANC MPs opted to close ranks behind the cabinet and Zuma, Parliament was left impotent.

The pervasiveness of one party in state institutions renders the system of checks and balances ineffectual.

It was obvious that the Constitutional Court judgment that found that the president failed to uphold, respect and defend the constitution would more starkly reveal this deficiency in our democratic system.

The debate on the motion to impeach Zuma, which was destined to fail, demonstrated how the tyranny of a majority can render the binding and final judgments of the highest court in the land exercises in futility.

As opposition parties so eloquently argued in the lead-up to and during the debate, the choice that lay before MPs on Tuesday was one between upholding or rejecting the constitution and thus the values and principles upon which the new South Africa was founded.

It came as no surprise that the ANC chose to stick with Zuma as this was consistent with the unwavering support for him throughout the scandal.

The Nkandla saga has brought to the fore the crisis of ethics and values not just of the president but of the ANC.

But more importantly, we must admit that there is a crisis in our political system as it entrusts too much power, influence and initiative in the governing party.

When all legal avenues have been exhausted, it leaves little recourse. Because of this, renewed calls to review the electoral system have arisen. The calls are inspired by a desire to make the president and individual MPs directly accountable to the people.

South African society has realised that the current system has made it easier for the ANC to become a law unto itself — above the constitution and the nation.

Such a change though requires constitutional amendments. To get those amendments passed would require a two-thirds majority in Parliament. It is clear that the ANC will not support any change or motion that would be to its disadvantage. The most effective form of protest would be to vote the ANC out of power.

Before South Africans rush to foment a violent revolution or to effect constitutional changes they must do what they’ve never done since 1994. They must show the ANC that it is not entitled to lead society, that it is dispensable and very much replaceable.

This article first appeared in Sowetan