Too much power corrupts

Without belittling the global economic crisis, the shameful xenophobic attacks, the renewed fighting at the Gaza Strip, even the brilliant win of Proteas in Australia and all; this year for me go down as the one the African National Congress (ANC) showed its real intentions and scared the pants out of me with its shenanigans. That woke me out of complacency that our country, politically, was on the golden path.

It is a given fact of history that governments that hold power too long lapse into decadence and corruption. Leaving aside semantic quibbles about the callous meanings of the word corrupt, it is fair to say that the dictum of the English nineteenth century historian, Lord Acton, proved to be applicable to our post apartheid government after the pivotal moment in our modern history at Polokwane. The ANC Government has since been through crisis after another, largely from dearth of vision and lack of proper leadership. It has, in my eyes at least, lost moral authority due to scandals, sleaze, arrogance and incompetence. The worse part is that, instead of attempting to mend its structural flaws it tried to save face by amassing more powers through what can only be termed as tyranny of legislation (changing laws of the republic to suite its designs).

It has become clear that what the ANC Government, with its Tripartite Alliance (TA) partners, is seeking to do by its so called National Democratic Revolution is to establish a society of unified intent, a society where uniformity of thought is enforced by the tyranny of the majority. It is trying to adopt what in historical terms is called the machtsstaat, a state based on might of arbitrary will of the persons in power without the strict observation of the rule of law.

After the horrible apartheid years South Africa chose to follow the rote of a Rechsstaat, i.e. the government that is bound by law with powers limited by the individual rights of its people. This rule of law emphasises the absolute supremacy of law as opposed to arbitrary power, even that of the majority and has been known, since the founding of the United States Republic, as Constitutional democracy. In this system an independent judiciary interprets and enforces provisions of the constitution even when it means overturning the acts of a democratically elected legislature. Of course those within the TA tend to carelessly drum the sacrosanct of democracy even when it violates other rights.

For instance, the ANC National Executive Council (NEC) was at pains trying to justify it’s decision to unconstitutionally recall the president of the republic, Thabo Mbeki. {Our constitution states clearly that only the Constitutional Court may decide that Parliament or the President has failed to fulfil a constitutional obligation. [The Constitution of the Republic of South Africa 1996, sec.172(4)(e).} The ANC NEC disregarded this in the recall, and the fact that in the South African system of governance only the constitution is sovereign. Section 2 of our Constitution Founding Provisions established the supremacy of the constitution above even the government. It says; “This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”

The supremacy of the Constitution was promulgated to prevent exactly these kinds of abuse of political power, and to control government power against the citizens. South Africa is a constitutional republic with checks and balances to minimise the impact of faction, and reduce the risk of the tyranny of the majority. This is the heritage it adopted from the American republic.

The American founding fathers realised the dangers of tyranny even from the majority rule when they established Constitutional democracy as means to control factions that may harm other citizens. James Madison, as if foreseeing what happened in SA since Polokwane, wrote in The Federal Papers that factions are “a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” It is easy to control a minority faction by a democratic process. At worst, Madison wrote, a minority faction “may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution.” But what of the majority disguising their abuse of law through manipulation and changing of laws?

Madison saw that the real danger arises with a majority faction. “When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.” In a democratic system the tyranny of the majority and legislature (which represents the majority) is something always alive and was given colour in our country post Polokwane by the ANC. “[I]t is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.” Admonished Madison.

A person who tabulated clearly the dangers of the “Tyranny of the Majority” was the nineteenth famous French social commentator Alexis de Tocqueville in his book Democracy in America. He warned against the lack of sufficient limitations on majority rule and dire consequences of unfettered democracy. Thomas Jefferson, as Alexander Hamilton, Madison’s co-author, all came to a conclusion that power must be granted to constitutional courts as a barrier against the tyranny of political assemblies, and means of accountability for the government. With that the American government shifted away from majority rule towards constitutional principles, which South Africa inherited and improved in certain areas. To see that thrown down the window by a few elite group elected by political factions was highly disconcerting.

We’ve seen the reshuffles and cathartic upheavals within our government ever since Polkwane. We now find ourselves under the power of leaders with wry perspective and bruised egos whose faces we were never sold into during our last vote. And near moral and political collapse of our democracy that has been hijacked by factions. We’ve seen plotters and mutineers invoking the name of democracy, making us accomplices in their designs. Surely at some stage we have to say enough is enough.