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THE OPPORTUNITIES FACED BY THE GNU IN MAKING THE CONSTITUTION A LIVED REALITY FOR ALL SOUTH AFRICANS

Address by Prof Dirk Kotze, Professor in Political Sciences at UNISA, at the FW de Klerk Foundation’s Coalition Government Conference, 12 July 2024

Good afternoon and thank you very much for the invitation to be here and to listen to all the other speakers. My approach will be to take the Government of National Unity (GNU) for granted. It’s there, it has been negotiated, it’s established, and it has already started to work.

Tomorrow, they will meet at the Presidential Guest House for the cabinet lekgotla. The purpose of my discussion will be to explore the GNU in relation to the Constitution. I do not think that we anticipated that we would reach this point during the lifetime of this Constitution. This Constitution was not designed for a coalition type of government. It was more for a one-party government, a majority-party government.

I think this is one of the reasons why the negotiations after the elections took so long and were so difficult. Now we are at the point of dealing with policymaking in the GNU. When policymaking happens within one government, one party as government, it obviously aligns with the party’s systems and overlaps with those of government.

I am going to look at three focus areas: first, the relationship between the government and the Constitution; second, the main constitutional values; and lastly, what is the Government of National Unity in relation to the Constitution.

I am going to differ on some aspects with some of the previous speakers, but I guess that’s the nature of such a discussion’s debates, where we have different views and insights. I am not going to give you a lecture on constitutions, but my understanding, as a political scientist, is that a characteristic of a national Constitution is that it determines the relationship between the government and the population, the voters, or the citizens, including those living in the country. It provides that basic framework of the relationship between the government on one side and to some extent, the public sector.

It defines, for example, the notion of public participation. The Constitution provides for that, and at least it explains how government policy will be made in relation to Parliament and other components of the state. It also determines the nature of legislation, because legislation must be constitutional, following the idea of the supremacy of the Constitution.

I hope you can already see the relationship emerging between the government and constitutionalism. In essence, a government like this one, the Government of National Unity, cannot exist if it is not in compliance or in-line with our Constitution. The Constitution becomes the foundation, the point of departure, for any government that has been established, for the purpose of implementing the Constitution.

As I have said, this Constitution was not initially written with the view that we could have, maybe in the future, a Government of National Unity. The 1993 Constitution, on the other hand, did explain how to constitute the Government of National Unity. In contrast with now, in 1994 the negotiations were not about which parties will be in the GNU (and which will be outside). This is a very important distinction between 1994 and where we are now. I think this is one of the complications we have today, which in my view, is actually against the spirit of the Constitution, because a party is disproportionately represented in the executive. This is not in line with constitutional principles or values as they were meant to be.

The first point here is about the separation of powers, which is a very important principle of constitutionalism and democracy. The idea is that there must be a distinction between the executive, the judiciary and the legislature; they must not overlap. We have a little overlap in terms of the executive and the legislature in the form of the ministers, but in essence, that separation of powers in this case, of the Government of National Unity, is exceptionally important, because it will determine the relationship of Parliament as well as the judiciary, with the executive (or the government).

What makes this unique in our context is that this government (GNU) consists of internal opposition parties who are not necessarily in agreement with the biggest party. This is, I think, both a uniqueness and a challenge. The strength of the Government of National Unity is that it has these diverse components working together for a specific purpose.

The Constitution does define the executive’s relationship with the judiciary and the legislature and the public. The rule of law is one of the key principles of our Constitution, including judicial review of the executive and legislative parliamentary actions. This means that whatever the Government of National Unity does, or what Parliament does, can be reviewed by the courts.

This creates a balance that is so essential and depends on the independence of the judiciary. Constitutionalism encourages a rules-based government, which means that while governments can sometimes be motivated by ideology or specific policies, in this case the Government of National Unity, the common elements must keep that government together, largely based on the rules determined by the Constitution.

Going back to the Statement of Intent signed by the different parties constituting the Government of National Unity, the point of departure was the Constitution and its principles. It became clear from the start that the Government of National Unity subjects itself to the Constitution in all respects. The implication of this is the distinction between Constitutional supremacy and Parliamentary supremacy. This has very serious constitutional implications for the Government of National Unity as it automatically subjects it to the Constitution. Thus, this Government of National Unity is circumscribed by the Constitution’s very strict confines. If it is clear from the start that the Government of National Unity subjects itself to the Constitution in all respects, this will also strengthen constitutionalism in South Africa.

It works both ways: the Constitution is the guiding principle for the Government of National Unity. If, for argument’s sake, there is a court case early in the government’s term in which an action of the Government of National Unity is rejected by the Constitutional Court, the question is whether the government will accept that or not. Will they implement what the court says? Luckily, in most instances, the different administrations complied with most of it, but now we have a new ball game with the Government of National Unity. We will have to see to what extent that is going to be the case, but it will be a test for the Government of National Unity to present the Constitution, not their different policies, as the main point of departure.

The constitutional values are outlined in section one of the Constitution. Important to note is that section one of the Constitution cannot be amended with a two-thirds majority; only a 75% majority can change it. This shows how important it was for the negotiators to say it is almost untouchable.

Look at some of the values: human dignity, the achievement of equality, the advancement of human rights and freedoms, non-racialism, non-sexism, the supremacy of the Constitution and the rule of law. It also mentions regular elections, a common voters’ role, and a multi-party democratic government to ensure accountability, responsiveness and openness. (I think that’s relevant for us, especially for the Government of National Unity, because it does constitute a multi-party dispensation, even if it includes parties with one or two seats in Parliament versus one with 150. It still means that government consists of more than one party.)

What is a Government of National Unity: It is an “oversized coalition”, but it is still a coalition, much bigger than the normal coalitions of a 50% plus one. However, normally it is an atypical coalition, because it includes parties that can govern without needing the other partners to form a coalition. (A coalition consists of parties of which no one has a 50% plus one majority and therefore they need to work together with others that reach that majority. In this case, we have a Government of National Unity, which is also a coalition at the same time, because there is no party with an absolute majority.) What makes it a Government of National Unity, in my view, is that it is required under very specific, special circumstances e.g. a crisis (such as in the UK during the two world wars) or a transition etc.

What are the special conditions that exist then here, in South Africa, at the moment for a Government of National Unity to be formed? There is a need for national convergence and for a national dialogue and the development of a common purpose. We have experienced much polarization between parties as a result of identity politics. A minimum coalition of 50% plus one would have been divisive. The idea of a broader, more inclusive coalition developed to dilute tensions between different parties and redefine the coalition as something that exists for the national interest.

Another important aspect is our socio-economic conditions. The country has experienced much, whether because of the pandemic, structural problems, or an economy that is not moving. There are issues like unemployment, social conflict and crime that need a broader consensus. Ideally, this formation of a Government of National Unity provides the institutional platform for a more inclusive debate. I do not expect everyone to agree about everything, or that a consensus must be developed for the Government of National Unity to work. The idea of a social compact, as President Mbeki and now President Ramaphosa are talking about it, is a way to develop more of a national understanding of the big issues, whether it is about economic development, employment, crime, or social matters, or foreign policy.

This Government of National Unity is unique, because it includes not only the executive but also Parliament, creating a wider spectrum and making it more inclusive. The approach taken by the two main provinces, Gauteng and Kwazulu-Natal, was very different: In Kwazulu-Natal, it depended on one small party, the NFP, which determined the whole dynamics of the negotiations. They had to do it quickly, because the first group to get hold of the NFP would form the coalition government.

In contrast, the Northern Cape had the Freedom Front Plus and the Patriotic Alliance supporting the ANC. The question is whether this will spill over into local government – in KwaZulu-Natal it already did with the NFP. Is that the reason for the problems in Gauteng, that especially Tshwane does not want this as the DA will lose its position there?

Then the question is: If you expand it so much, what about provinces where the ANC has a majority? Why aren’t they part of these discussions?

Lastly, regarding consensus-seeking: the Constitution does not specify how decisions are taken in the cabinet. The idea of consensus-seeking is laudable, but if you have a consensus approach as your final decision-making principle, you give the smallest party a veto power. That is why the notion of sufficient consensus was included in the Statement of Intent. In the process of decision-making, there must be internal debates and the different parties must state their positions to prevent frustration, otherwise it can appear as merely a form of co-option to include small parties in the Government of National Unity and they are set up to become frustrated and ultimately pull out. Thus, there is a very fine balance that must be struck between open debate and taking a decision. This will be the art of the internal processes of the Government of National Unity.

My last point is about collective responsibility and accountability. Section 92 of the Constitution states that all ministers in the Cabinet must take personal and collective responsibility for what they do. The public debate and media often misunderstand this by thinking e.g., if you are the Minister of Agriculture from the DA, you can implement the DA’s policy on agriculture etc. This would create chaos. I think tomorrow’s Lekgotla is going to work well, because all the parties that are there, most of their policies are very close to each other, except for a few. Thus, there are common elements that will be the point of departure for such a process of policy development. Policies are living ideas that evolve over time and the idea of having absolute consensus about policies is unrealistic. I think what will emerge is a common commitment to the evolution of the policies based on the principles contained in the Statement of intent.

What will happen with the Government of National Unity during the local government elections? All these parties will campaign against each other, presenting their views and policies. The question is what will bind them together versus the diverging interests and is there enough of a core agreement to keep them united?

This leads us to the relationship between the Government of National Unity and the seven parties in opposition. The Constitution works on the basis of an effective opposition. In this case the Government of National Unity represents around 70% and the opposition is 30% of the voters. We must not give so much power or authority to the Government of National Unity that it undermines the opposition.