The intent of the founders

Democracy has been driven from its inception by the idea of empowering the people to run their own lives and shape their future. In whatever form it takes, democracy is not a cure-all for the conflicts of interests and contradictions that are manifest in a society.

What it does is to provide a platform that enables these conflicts to be mediated, be it temporarily or otherwise. Perhaps a simpler analogy would be to describe it as laying out a playing field with all its markings and elaborating the rules in terms of which the mediation takes place.

The concept of representative government elected by the people, while advancing the notion of democracy, bears with it several implications.

By placing political power into a small group of elected persons it creates the space for the abuse of state power and the need for mechanisms of accountability. Another consequence is that increasing numbers of citizens feel marginalised,alienated and taken for granted. While all these tendencies are manifest in almost all democratic systems in the world today, at present most of the emphasis falls on issues of abuse of power and accountability.

This emphasis is correctly founded not in some theory but our actual experience of the last two decades.

However, almost by default, it is assumed that minimizing abuse of power and enhancing accountability attends to the matter of alienation.

This is a problematic assumption. The current US and the Philippines elections and the destructive tendencies present in some of the protests, or what questionably is described as protests, in our country provide us with an insight into the extent of this alienation and some regressive consequences that may arise.

I make these points, because, though I have been privileged to be part of the making of our constitution of which I am inordinately proud, I recognise that democracy is an evolving concept and because almost all democratic systems in the world are today under stress.

The common factors in this regard are the increasing numbers of citizens who feel marginalised, the manifestations of the abuse of power, the need for greater accountability, and concerns about the contradictions that arise between the right to privacy and the need for security, all of which need continuous attention in any democracy, including a constitutional democracy, if we are to meet the core challenge of empowerment of the people.

My next observation relates to the process that produced our constitutional democracy. The central feature of South Africa’s constitution-making process was that the Constitution emerged from a negotiation process aimed at resolving the on-going political conflict. It was quintessentially a political process.

There were three phases: The pre-negotiation phase from 1985 to December 1991. During phase two, 1991 to 1994, formal negotiations encompassed the holding of multi-party negotiations, the adoption of the Interim Constitution, the elections of April 1994 and the setting up of the Constitutional Assembly. The third phase, 1994 to 1996, was the drafting of the final Constitution, its certification and signing into law on 10 December 1996

While it is possible to limit consideration of constitution-making to the latter two phases when the Interim Constitution and the final Constitution were adopted, it is important not to lose sight of the pre-negotiation phase and the political processes that stretched across all three phases.

Failure to do so would limit our understanding of the nature of the architecture of our democracy and how its components came to be constructed.

It also would limit the scope of the lessons for conflict resolution and the centrality of constitution-making in societies grappling with civil war and seemingly unresolvable conflicts

Thirdly, none of the parties involved in the negotiations came to the table with some pre-conceived model of a constitutional democracy.

While there was a general understanding that the goal of the negotiations would be democracy, the meaning and content of democracy was highly contentious.

The particular position being advocated by a specific formation at a given time was driven by the interests of the social formation/s they believed they represented. Accordingly, they shaped their “democracy” to meet those interests

As the negotiations progressed, parties looked at the constitutions of different countries. However, the driving force of the process was the reconciling of positions around specific concrete challenges rather than a theory driving us to particular answers to those challenges.

During the pre-negotiation phase the National Party government and the ANC agreed to find a negotiated settlement.

By his 2 February 1990 statement and the subsequent release of Nelson Mandela, FW de Klerk began the process of removing the obstacles that stood in the path of negotiations

It was during this period that a road map for negotiating South Africa from apartheid to a non-racial democracy was developed by the ANC.

Known as the Harare Declaration it was adopted by the Frontline States and the OAU and it received the support of the United Nations in 1989.

It set out nine general universally recognised principles which should be accepted by the parties to the conflict, the requirements that should be met in creating a climate for negotiations and guidelines for the negotiation process.

The Declaration became a road map which, together with the discussion document “Constitutional Guidelines for a Democratic South Africa” of 1989, the ANC used to strategically position itself with regard to process, procedure and the agenda for the negotiations

Arising out of meetings with the government from as far back as June 1986 Mandela set out the core challenge that would face the negotiators in notes he penned in early 1989.

“Two political issues,” he noted, “will have to be addressed at such a meeting; firstly, the demand for majority rule in a unitary state, secondly, the concern of white South Africa over this demand, as well as the insistence of whites on structural guarantees that majority rule will not mean domination of the white minority by blacks. The most crucial task which will face the government and the ANC will be to reconcile these two positions.”

He emphasized that “white South Africa simply has to accept that there will never be peace and stability in this country until the principle (of majority rule) is fully applied.” In other words, majority rule is the hallmark of a democracy based on universal adult suffrage

This was not only a useful compass during the twists and turns of the negotiations but it directly related to understanding that representative democracy is inseparably linked to the empowerment of the people. It was the litmus test for the ANC when evaluating progress at the negotiations and I would urge that it should continue to be used when we advocate changes in our constitutional democracy.

Much of the debates and tussles that took place at the negotiation table, at the bilateral meetings as well as in the streets, had their source in finding ways to reconcile the principle of majority rule and the demand of the white minority for structural guarantees against black domination.

Almost all the concepts that were marshalled both during the crafting of the Interim Constitution and the final Constitution – whether these revolved around a unitary, federal or confederal state, whether they raged over group rights, individual rights, socio-economic rights, the property clause, language and cultural rights, issues of the rights of employees (e.g. to strike) and of employers (e.g. to lock-out), self determination, the manner in which the cabinet of the GNU would be constituted and how it would take decisions, as well as the duration of the GNU, the majorities required to amend the Interim Constitution and for decisions of the Constitutional Assembly, the electoral system based on proportional representation, the formulation of the thirty-four principles that the final Constitution had to be in accord with, the nature and manner in which the Constitutional Court was to be constituted – all the conceptual battles that arose around these issues revolved around finding that balance that Mandela had crisply articulated.

We have thus been bequeathed a finely balanced Constitutional Democracy – a form of representative democracy with checks and balances based on the rule of law, the separation of powers and the Constitution as the supreme law of the land.

The entire edifice stands or falls on its democratic credentials which derive from its elected institutions.

In fact, there is, and there should be, a permanent tension that holds together the three arms of government – the legislature, the executive and the judiciary – as well as the Chapter Nine institutions. The dynamism of our constitution is in part a function of this tension.

When we look at the making of our Constitution in this way we get a deeper understanding of the intention of the founders of our Constitution.

We see it emerging in the heat of battles generated by centuries of conflict;

We see those who crafted it grappling with concrete issues as they affected our diverse communities, classes and social formations, in order that we attain a democratic system that empowers all, especially those who were denied a voice under colonial and apartheid rule and assures even those who monopolised power in the past a place in the sun like all other citizens..

Earlier I said that it is dangerous to assume that minimising abuse of power and enhancing accountability attends to the matter of alienation.

The past two decades have produced sufficient concrete manifestations of the extent and serious nature of all three harmful tendencies.

The issues of abuse, accountability and marginalization are inseparably linked to the challenge of empowerment of the people immanent in all forms of representative democracy.

Our Constitution does not limit the participation of the people to elections and hearings of the legislature.

People will feel relevant, less marginalised, if we institute practical measures to enhance their participation on a continuing basis, starting at the local levels.

We need to bring this aspect into the focus of our attention as a matter of urgency.

Participatory democracy has been talked about but there has been no real and serious effort to to develop it.

We need remind ourselves always that, in whatever debates we have and whatever changes we propose to our Constitution, democracy is about the empowerment of the people. The very legitimacy of our Constitution derives from this proposition.

Participatory democracy is the new frontier in the development of representative democracy in general and our Constitutional Democracy in particular. Our commitment to freedom should inspire us to take up this challenge with a sense of purpose that goes beyond an ad hoc response to an immediate problem.

CDE MAC MAHARAJ IS A FORMER MEMBER OF THE ANC NEC