20 years since the dawn of democracy in South Africa, democracy and democratic government are often still understood in a rather one-dimensional manner – majority rule. It is about much more than that. Ours is a constitutional democracy: a system of government based on popular sovereignty in which the structures, powers and limits of government are prescribed in a Constitution. Although a constitutional democracy does not always ensure that everyone will achieve everything, it requires broad participation and does not allow for groups, interests or opinions to be excluded from democratic processes. In the Oriani-Ambrosini-case, the Constitutional Court remarked in a dictum of greatest importance to our understanding of a multi-party democracy, that our constitutional democracy is “designed to ensure that the voiceless are heard, and that even those of us who would, given a choice, have preferred not to entertain the views of the marginalised or the powerless minorities, listen.“
In South Africa, the Constitution and the rule of law are supreme. This means all conduct or legislation inconsistent with the Constitution and the rule of law is invalid. It also means that all obligations imposed by the Constitution must be fulfilled. That much is clear. The Constitution, however, does not define democracy. It rather creates a tapestry of carefully interwoven values, principles and rights that, according to its Preamble, “lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by the law” – a society based on “democratic values, social justice and fundamental human rights“. Accordingly, section 1 of the Constitution determines that South Africa is a sovereign and democratic state founded on the values underpinning democracy: human dignity, the achievement of equality and the advancement of human rights and freedoms; non-racialism and non-sexism; supremacy of the Constitution and the rule of law; and universal adult suffrage, a common voters roll, regular elections and “a multi-party system of democratic government to ensure accountability, responsiveness and openness“.
What then is democracy? In principle, it is the right of citizens to choose or replace a government through free and fair elections and the notion that government can only be justifiable if based on the will of the people – thus, consent of the governed. It is about the ability and the duty of citizens to freely participate in political and civic life. It is government based on the rule of law and the ability of every person to enjoy equal protection by and before the law. It is about a commitment to a limitation on ordinary power and the protection, promotion and realisation of human rights and freedoms in a fair and balanced manner. Democracy is about people not power.
All of these democratic values and principles are effectively enshrined in the Constitution. The Constitution, however, demands more from our democracy. Our “multi-party system of democratic government” must result in “accountability, responsiveness and openness“. It requires government to continuously justify its use of power in a responsive and open manner. Etienne Mureinik refers to these values as the foundation for a “culture of justification” – a culture in which “leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command“. This means that the government, its officials and its institutions must be able to explain and justify its decisions, actions and laws to the people. It also means that government must respond to and be accessible to the people and it must conduct its business of governance in an open and transparent manner. When elected representatives fail to account in a responsive and open manner, the electorate has a duty to hold them accountable. This duty goes much further than casting a vote every five years.
Aristotle appropriately wrote that “if liberty and equality, as is thought by some, are chiefly to be found in democracy, they will be best attained when all persons alike share in the government to the utmost.” Obviously, we have to participate in elections to elect representatives (from more than one political party, according to the Constitution). It means that we must partake in political and public life bearing in mind mutual respect for different views, interests and opinions. We must insist on accountability from government through our elected representatives, the media and civil society. It also means that we must demand and claim our rights to engage government and elected representatives on an ongoing basis. Quite simply it means that the kind of democracy contemplated by the Constitution requires a combination of direct, representative and participatory democracy in which all citizens participate.
Direct democracy means that every person should be able to and ought to freely participate in political and civic life. This includes the right to engage the government directly, to assemble, demonstrate, picket and petition, to criticise government and to express concerns. Conversely, representative democracy is premised in political rights, including the right to vote and choose representatives who will govern on behalf of the people. This right is arguably the most basic political right in a democracy, but one of the most important cornerstones of a democracy as it allows the people – according to Larry Diamond – to be “the highest form of political authority“. Finally, participatory democracy has at its core the prerequisite that the people must be able to and must actually continuously participate in decisions and actions that affect their lives. Elected representatives must give life to participatory democracy by not only representing the people, but by also providing a platform for continuous engagement with the people.
Justice Sachs, on behalf of the Constitutional Court in the Doctors for Life-case, stated that an active and continuous public involvement in government was a constitutional obligation and not just “a matter of legislative etiquette or good governmental manners“. Hence, although elections are inherently periodical, constitutional values including accountability, responsiveness and openness, are by their very nature, so the Court held, ubiquitous and timeless: “They are constants of our democracy, to be ceaselessly asserted in relation to ongoing legislative and other activities of government. Thus it would be a travesty of our Constitution to treat democracy as going into a deep sleep after elections, only to be kissed back to short spells of life every five years“. A commitment to accountability, responsiveness and openness as constitutional values therefore requires not only representation but also participation.
Although democracy can be attained in theory, it can only be maintained in practice. Democracy is about us, the people of South Africa and it needs your vote of confidence. Consequently, citizens ought to vote and vote wisely, they must be informed about issues of public interest or concern and they must carefully keep an eye on how elected representatives and political leaders use their powers. In short, they must continuously demand accountability, responsiveness and openness from elected representatives. Democracy also requires citizens to express their own opinions and interests loud and clear. It requires citizens to participate in democratic processes and to engage government about concerns. For elected representatives, democracy is an unequivocal reminder, according to Diamond, that political power “flow[s] from the people to the leaders of government, who hold power only temporarily” and that they have a continuous responsibility towards the Constitution and the electorate. That is democracy.
By Adv Johan Kruger, Director: Centre for Constitutional Rights
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